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appellate jurisdiction

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M.V. ACT = WONDERFUL JUDGEMENT VVV IMPORTANT = Apex court enhanced the compensation to Rs. 16 lakhs – just compensation even though there is no prayer in the claim petition to that extent as they filed application claiming compensation under Section 166 of the M.V. Act.= loss of care and guidance for minor children & loss of consortium = Rs.1,00,000/- must be added under the head of loss of consortium and Rs.1,00,000 under the head of loss of care and guidance for minor children. Further, it was held by this Court in the case referred to supra that Rs.25,000/- must be awarded for funeral expenses as this Court has made observations in the case referred to supra that the tribunals have been frugal in awarding the compensation under the head ‘funeral expenses’ and hence, we award Rs.25,000 under the head of funeral expenses to the claimants/legal representatives .; Increase of income for private employees ranging from 30% to 50% = an addition of 30% increase must be applied for increase in total income of the deceased over a period of time if he had been alive. Further, in the recent decision in Rajesh & Ors. V. Rajbir Singh[6], this Court while referring to the case of Santosh Devi (supra) held that in the case of self-employed persons or persons with fixed wages, in case the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects of the deceased. ; How to determine the income of deceased = The State Government in exercise of its statutory power under Section 3 of the Minimum Wages Act, 1948 must issue a notification for fixing the wages of a polisher. Even in the absence of such a notification, both the Tribunal as well as the High Court should have at least taken the income of the deceased as Rs.40,000/- per annum as per the table provided in the IInd Schedule to Section 163-A of the M.V. Act for the purpose of determining just, fair and reasonable compensation under the heading loss of dependency of the appellants, though the said amount is applicable only to the claims under no fault liability. ; Therefore, this Court has awarded just and reasonable compensation in favour of the appellants as they filed application claiming compensation under Section 166 of the M.V. Act. Keeping in view the aforesaid relevant facts and legal evidence on record and in the absence of rebuttal evidence adduced by the respondent, we determine just and reasonable compensation by awarding a total sum of Rs. 16,96,000/- with interest @ 7.5% from the date of filing the claim petition till the date payment is made to the appellants. “There is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case, where from the evidence brought on record if the Tribunal/court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. The only embargo is — it should be “just” compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the MV Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be.”= Accordingly, the appeal is allowed on the above said terms. The respondent is directed to pay the enhanced compensation in this appeal with interest awarded, in favour of the appellants in the following ratio. 75% of the awarded amount shall be paid equally in favour of appellant Nos. 1 to 3 and the remaining 25% must be in the name of appellant Nos. 4 and 5 in equal proportion with proportionate interest. Out of the 75%, each of appellant Nos. 1 to 3 will get 25% and further, 10% of the share of appellant No.2 and 10% of the share of appellant No.3 must be deposited with proportional interest payable to each one of them in any Nationalized Bank of their choice and the rest 15% of each of their award amounts, with proportionate interest to be paid to them. The appellant Nos. 2 and 3 are at liberty to move the Tribunal to release the money so deposited for their welfare and developmental purpose. The above said direction regarding the payment and deposit shall be made within six weeks by depositing it in the Bank and disburse the amount by way of demand draft drawn in the name of each one of them as directed above. There will be no order as to costs.

PUBLISHED IN http://judis.nic.in/supremecourt/imgst.aspx?filename=40844   IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8251 OF 2013 (Arising out of SLP (C) No. 36602 of 2012) SANOBANU NAZIRBHAI MIRZA & ORS. … APPELLANTS VS. AHMEDABAD MUNICIPAL TRANSPORT SERVICE … RESPONDENT J U D G M E N T V. GOPALA GOWDA, J. Leave granted. 2. … Continue reading

Sanction to prosecution is a conditional precedent = whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 Cr.P.C. for investigation by the Deputy Superintendent of Police – Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) Cr.P.C. without the production of a valid sanction order under Section 19 of the Prevention of Corruption Act, 1988.= The High Court, after hearing the parties, took the view that the Special Judge could not have taken notice of the private complaint unless the same was accompanied by a sanction order, irrespective of whether the Court was acting at a pre-cognizance stage or the post- cognizance stage, if the complaint pertains to a public servant who is alleged to have committed offences in discharge of his official duties. The High Court, therefore, quashed the order passed by the Special Judge, as well as the complaint filed against the appellant. ;Taking cognizance of an offence= “It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.”; whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre-cognizance stage. Section 2(c) of the PC Act deals with the definition of the expression “public servant” and provides under Clauses (viii) and (xii) as under: “(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty. (xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.”= When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. = “19. Previous sanction necessary for prosecution.—(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction— a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; b) in the case of a person who is employed in connection with the affairs of a State and is not removeable from his office save by or with the sanction of the State Government, of that Government; c) in the case of any other person, of the authority competent to remove him from his office.”- “Section 19(3) – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- a) no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; b) xxx xxx xxx c) xxx xxx xxx”= Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. – “Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him….. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.”= We are of the view that the principles laid down by this Court in the above referred judgments squarely apply to the facts of the present case. We, therefore, find no error in the order passed by the High Court. The appeals lack merit and are accordingly dismissed.

  published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40843     REPORTABLE           IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION   CRIMINAL APPEAL NOS. 1590-1591 OF 2013 (@ Special Leave Petition (Criminal) Nos.6652-6653 of 2013)   Anil Kumar & Ors. ….. Appellants   Versus   M.K. Aiyappa & Anr. ….. Respondents     … Continue reading

Wrong procedure adopted by Magistrate = In a Kidnap case on a private complaint, when the police filed charge sheet excluding kidnap and filed only under sec. 323 and 343 of I.P.C. – with out conducting trial no court should pass orders on plea of guilty and releasing the accused on probation with a direction – not to affect his service = conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. The word “disqualification” contained in Section 12 of the 1958 Act refers to a disqualification provided in other statutes, as explained by this Court in the above referred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the 1958 Act.”= the trial court had no competence to make any observation having civil consequences so far as the private respondents are concerned. The High Court rejected the application under Section 482 Cr.P.C. filed by the appellant only on the ground that the appellant neither challenged the order of taking cognizance nor raised any objection at the time of reading over of the charges to the accused. The High Court failed to appreciate that before the statement of the appellant or any other witness could be recorded, the trial court disposed off the matter on the date when the application itself had been submitted admitting the guilt. Even otherwise if the trial court wanted to entertain any issue of plea bargaining under Chapter XXI-A, inserted w.e.f. 5.7.2006, then too the court was obliged there under to put the victim to notice before extending any such benefits that have been given in the present case. The procedure therefore appears to have been clearly violated. Therefore, in the facts and circumstances of the case, the appellant had no opportunity to raise any grievance before the appropriate forum.= In view of the above, the appeal succeeds and is allowed. The judgment and order of the trial court dated 15.7.2011 as well as of the High Court dated 23.4.2012 are set aside. The matter is remitted

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40841     REPORTABLE   IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION   CRIMINAL APPEAL NO. 1547 of 2013       Girraj Prasad Meena …Appellant   Versus   State of Rajasthan & Ors. …Respondents               J U D G M E N T   … Continue reading

Sec.125 (3) of Cr.P.C. – When first petition not satisfied even after arrest of husband, another petition for arrears of maintenance from the date of order to till the day of new petition can not be considered as Time Barred as it is in continuation of old petition and for subsequent defaults = As the respondent-husband had not complied with the order of payment, in a miscellaneous petition, i.e., C.M.P. No. 566/1998 filed by the appellant, the trial court by its order dated 21.07.1998 had sentenced the respondent to imprisonment. The default in payment of maintenance was for the period 4.2.1993 to 4.2.1998. On 5.2.2002 another miscellaneous application (Crl.M.P. No.394/2002) was filed by the appellants claiming maintenance for the period 4.2.1993 to 5.2.2002. – As the aforesaid order of the High Court had curtailed the entitlement of the appellants to maintenance to a period of one year prior to the date of filing of the Crl. M.P. No. 394/2002, the appellants have filed this appeal.= The application dated 05.02.2002 filed by the appellants under Section 125(3) was in continuation of the earlier applications and for subsequent periods of default on the part of the Respondent. The first proviso to Section 125(3), therefore did not extinguish or limit the entitlement of the appellants to the maintenance granted by the learned trial court, as has been held by the High Court.= The order dated 21.04.2004 of the High Court is set aside and we now issue directions to the respondent to pay the entire arrears of maintenance due to the appellants commencing from the date of filing of the Maintenance Petition (M.C.No.1/1993) i.e. 4.2.1993 within a period of six months and current maintenance commencing from the month of September, 2013 payable on or before 7th of October, 2013 and thereafter continue to pay the monthly maintenance on or before the 7th of each successive month. If the above order of this Court is not complied with by the Respondent, the learned Trial Court is directed to issue a warrant for the arrest of the respondent and ensure that the same is executed and the respondent taken into custody to suffer imprisonment as provided by Section 125(3) CrPC. The appeal is allowed.

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40838     REPORTABLE   IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION   CRIMINAL APPEAL NO.1542 OF 2013 (ARISING OUT OF SLP (CRL.) NO. 4654 OF 2005)   Poongodi & Anr. … Appellant(s) Versus Thangavel … Respondent(s)   J U D G M E N T   RANJAN GOGOI, J.   … Continue reading

When a court not inclined to grant anticipatory bail , can not direct the lower court to grant bail on the surrender of the accused – the orders to consider the bail application on surrender and release him on it’s satisfaction of sureties submitted was misread by lower courts = On a reading of the said authoritative pronouncement and the principles that have been culled out in Savitry Agarwal there is remotely no indication that the Court of Session or the High Court can pass an order that on surrendering of the accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender. When the High Court in categorical terms has expressed the view that it is not inclined to grant anticipatory bail to the petitioner-accused it could not have issued such a direction which would tantamount to conferment of benefit by which the accused would be in a position to avoid arrest. It is in clear violation of the language employed in the statutory provision and in flagrant violation of the dictum laid down in Gurbaksh Singh Sibbia and the principles culled out in Savitri Agarwal.”= In the case at hand, though such an order was not passed by the learned single Judge, yet the order passed by him was potent enough to create enormous confusion. And it has so happened. It is the duty of the superior courts to follow the command of the statutory provisions and be guided by the precedents and issue directions which are permissible in law. We are of the convinced opinion that the observations made by the learned single Judge while dealing with second application under Section 438 CrPC was not at all warranted under any circumstance as it was neither in consonance with the language employed in Section 438 CrPC nor in accord with the established principles of law relating to grant of anticipatory bail. We may reiterate that the said order has been interpreted by this Court as an order only issuing a direction to the accused to surrender, but as we find, it has really created colossal dilemma in the mind of the learned Additional Sessions Judge. We are pained to say that passing of these kind of orders has become quite frequent and the sagacious saying, “A stitch in time saves nine” may be an apposite reminder now. We painfully part with the case by saying so. 30. The appeal is disposed of in terms of the modification in the order passed by the learned single Judge in M.Cr.C. No. 701 of 2013 and the observations made hereinabove.

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40837         IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION   CRIMINAL APPEAL NO.1545 OF 2013 (Arising out of S.L.P. (Crl.) No. 7678 of 2013)       Ranjit Singh … Appellant   Versus   State of M.P. and others …Respondents                 … Continue reading

Whether the development agreement is work contract liable for sale taxes under Karnataka sale Tax and also the materials used in the building are liable for sale tax ; Like wise those works are liable under VAT MVAT under Maharashtra laws Sale Tax on development agreement and sale tax on the goods used while constructing building under Karnataka sale tax and also value added tax under Maharashtra = value of the goods which can constitute the measure of the levy of the tax has to be the value of the goods at the time of incorporation of goods in the works even though property in goods passes later. Taxing the sale of goods element in a works contract is permissible even after incorporation of goods provided tax is directed to the value of goods at the time of incorporation and does not purport to tax the transfer of immovable property. The mode of valuation of goods provided in Rule 58(1A) has to be read in the manner that meets this criteria and we read down Rule 58(1-A) accordingly. The Maharashtra Government has to bring clarity in Rule 58 (1-A) as indicated above. Subject to this, validity of Rule 58(1-A) of MVAT Rules is sustained. Once we have held that Raheja Development1 lays down the correct law, in our opinion, nothing turns on the circular dated 07.02.2007 and the notification dated 09.07.2010. The circular is a trade circular which is clarificatory in nature only. The notification enables the registered dealer to opt for a composition scheme. The High Court has dealt with the circular and notification. We do not find any error in the view of the High Court in this regard. Moreover, the Advocate General for Maharashtra clearly stated before us that implementation of Rule 58(1-A) shall not result in double taxation and in any case all claims of alleged double taxation will be determined in the process of assessment of each individual case. 126. After having given answer to the reference, we send the matters back to the Regular Bench for final disposal.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40833     REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8672 OF 2013 (Arising out of SLP(C) No.17741 of 2007)       M/s. Larsen & Toubro Limited & Anr. …… Appellants   Versus   State of Karnataka & Anr. ……Respondents   WITH   CIVIL APPEAL NOS. 8673-8684 … Continue reading

monitor the investigation= whether this Court should continue to monitor the investigation, as directed earlier, even after filing of the charge- sheet. = monitoring of a case is continued till the investigation continues but when the investigating agency, which is appointed by the court, completes the investigation, files a charge-sheet and takes steps in the matter in accordance with the provisions of law before a competent court of law, it would not be proper for this Court to keep on monitoring the trial which is continuing before a competent court. Accordingly, we are of the opinion that since the investigation has already been completed, charge- sheet has been filed, trial has already commenced, it is not necessary for this Court to continue with the monitoring of the case in question. In these circumstances, we have to answer the question in the negative. Accordingly, we direct that it is not necessary to monitor the matter in question any further since the matter is in the domain of the competent court. All the applications are accordingly disposed of.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40830         Reportable   IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION   CRIMINAL MISCELLANEOUS PETITION NO.21811 OF 2010 WITH CRIMINAL MISCELLANEOUS PETITION NO.17950 OF 2011 AND CRIMINAL MISCELLANEOUS PETITION NO.15638 OF 2012 IN CRIMINAL MISCELLANEOUS PETITION NO.21811 OF 2010 IN   SPECIAL LEAVE PETITION (CRIMINAL) NO. 3212 OF … Continue reading

changing his date of birth = whereby the Division Bench has overturned the judgment and order dated 14.6.2004 passed by the learned single Judge in W.P. No. 5700(W) of 2001 whereunder he had given the stamp of approval to decision dated 26.2.2004 by the General Manager of the appellant-company, who had rejected the objection of the respondent for changing his date of birth as recorded in his service excerpts and Form ‘B’ Register, the appellants have preferred their appeal by special leave.- “Implementation Instruction No. 76” has tried to support the order passed by the Division Bench. Para (A)(i) deals with Matriculation certificate. It reads as follows: – “(i) Matriculates. In the case of appointees who have passed Matriculation or equivalent examinations, the date of birth recorded in the said certificate shall be treated as correct date of birth and the same will not be altered under any circumstances.” Para (A)(v) deals with revision of determination of date of birth in respect of existing employees. Paras (A)(v)(i)(a) and (b) are as follows: – “v) Review determination of date of birth in respect of existing employees. i) (a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognized Universities or Board or Middle pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/Boards/Institutions prior to the date of employment. (b) Similarly, Mining Sirdarhip, Winding Engine or similar other statutory certificates where the Manager had to certify the date of birth will be treated as authentic. Provided that where both documents mentioned in (i)(a) and (i)(b) above are available, the date of birth recorded in (i)(a) will be treated as authentic.”- It is a well-known principle that one of the ends of equity is to promote honesty and fair play. If a person has taken an undue advantage the court in its extraordinary jurisdiction would be within its domain to deny the discretionary relief. In fact, Mr. Singh, learned senior counsel for the appellants, has basically rested his submission on this axis. In our considered opinion, the Division Bench has erred in extending the benefit to the respondent who had taken undue advantage by not producing the Matriculation Certificate solely on the motive to get an entry into service. In view of our aforesaid premised reasons we are unable to concur with the view taken by the High Court in F.M.A. No. 169 of 2006 and, accordingly, the Judgment dated 17.8.2007 passed by the Division Bench is set aside. 19. Resultantly, the appeal is allowed with no order as to costs.

published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40832 Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8634 OF 2013 (Arising out of S.L.P. (C) No. 22813 of 2007) Eastern Coalfields Ltd. and others … Appellants Versus Bajrangi Rabidas …Respondent         J U D G M E N T   Dipak Misra, J. … Continue reading

conciliation/mediation = Undoubtedly, both the parties were minor at the time when the respondent claims that they were married. She further alleges that she gave birth to a daughter when the parties lived together as husband and wife. Respondent filed a suit with a prayer that the appellant be restrained from marrying anyone else during her life time. She also filed another suit claiming that she and her daughter are entitled to 1/3rd share of the property owned by the appellant and his father. She, therefore, prayed for a perpetual injunction restraining the appellant and his father from alienating the suit property.- Paramount duty of the Court in matrimonial matters should be to restore peace in the family. The attitude should not be to further encourage the parties to litigate. Only as a last resort the Court ought to decide the suit/proceeding on merits. Therefore, we are unable to approve the observations made by the High Court in the impugned judgment. In that view of the matter, the appeal is allowed; the observations made in Para 4 of the impugned judgment are deleted.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40831 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8572 OF 2013 [Arising out of Special Leave Petition (Civil) No.26148 of 2011] BHEEMRAYA …APPELLANT VERSUS SUNEETHA …RESPONDENT ORDER Delay condoned. Leave granted. We have heard the learned counsel for the parties at length. Undoubtedly, both the parties were minor … Continue reading

Company Laws = Whether the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter for short “SICA”) are applicable to the “foreign companies” registered in India under the provisions of Section 591 of the Companies Act, 1956 (hereinafter for short “the Act”) and, therefore, the revival scheme framed by the Board for Industrial and Financial Reconstruction (hereinafter referred to as “BIFR”) in respect of the Baranagore Jute Factory Plc. (hereinafter for short ‘the Respondent Company’) is required to be implemented. Section 3(o) of the Act which defines a sick industrial company in the following terms: “(o) “sick industrial company” means an industrial company (being a company registered for not less than five years) which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth. Explanation.—For the removal of doubts, it is hereby declared that an industrial company existing immediately before the commencement of the Sick Industrial Companies (Special Provisions) Amendment Act, 1993 registered for not less than five years and having at the end of any financial year accumulated losses equal to or exceeding its entire net worth, shall be deemed to be a sick industrial company;”= In the aforesaid situation keeping in view the object and scheme of the Act and the virtual consensus of the contesting parties with regard to the present financial health of the respondent company it is clear that the company can no longer fall within the ambit of the expression “sick industrial company” as defined in Section 3(o) of the Act. Further applicability of SICA to the respondent company, therefore, does not arise.

published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40821      REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.8440-8445 OF 2013 (Arising out of SLP (C) Nos.39005-39010 of 2012)   Yash Deep Trexim Private Limited … Appellant (s)   Versus   Namokar Vinimay Pvt. Ltd. & Ors. … Respondent (s)   With Civil Appeal Nos.8446-8451 … Continue reading

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