This tag is associated with 35 posts

“transportation for life” A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person’s natural life. The petitioner – a life convict has filed this contempt petition against the respondents – the State of West Bengal and its officers for disobeying the order dated 24.11.2010 passed by this Court by not complying with the same within the prescribed period of eight weeks and failure to release him in accordance with the statute. – “The life convict was convicted on 18.01.1990 under Section 302/34 IPC and detained in connection with S.T. No. 01 of June 1989. He was released on parole from Presidency Correctional Home on 29.04.2005 in compliance with Hon’ble Supreme Court’s order in Writ Petition (Criminal) No. 279 of 2004. The police authority vehemently opposed the premature release of the life convict on the following grounds: (a) He was a notorious fellow in the area before his conviction. (b) He still maintains relationship with his old associates. 20Page 21 (c) He is within the age of 52 years with sound health. (d) His socio economic condition is not sound. (e) In case of his premature release there is every possibility of his reverting to criminality. (f) During his parole he has been technically serving life imprisonment binding him to refrain from criminal activities for the time being. There is every possibility of his committing further crimes. Considering the above fact, the Review Board did not find any reason to recommend premature release of the life convict now on parole.” It is seen that after careful consideration of all the aspects, the Review Board in its meeting held on 27.01.2011 did not recommend the petitioner for his premature release. The recommendation of the Review Board was placed before the State Government and the State Government accepted the recommendation of the State Sentence Review Board. The decision of the State Government was communicated to the petitioner vide letter No. 790-J dated 09.02.2012. In view of the decision of the State Sentence Review Board, approval by the State Government and the principles enunciated in various decisions of this Court including the decision of the Constitution Bench in Gopal Vinayak Godse’s case (supra), we find no merit in the contempt petition, consequently, the same is dismissed.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA ORIGINAL JURISDICTION CONTEMPT PETITION (C) No. 363 OF 2011 IN WRIT PETITION (CRL.) No. 279 OF 2004 Life Convict Bengal @ Khoka @ Prasanta Sen …. Petitioner (s) Versus B.K. Srivastava & Ors. …. Alleged Contemnors/ Respondent(s) J U D G M E N T P.Sathasivam,J. 1) … Continue reading

The Banking Public Financial Institutions and Negotiable Instruments (Amendment) Act, 1988 – Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary = the absence of any details of the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance. So also the fact that the cheque was presented on the day following the altercation between the parties is a circumstance that cannot be brushed away. The version of the respondent that the cheque was not returned to him and the complainant presented the same to wreak vengeance against him is a circumstance that cannot be easily rejected. Super added to all this is the testimony of DW1, Jeevan Guru according to whom the accounts were settled between the father of the complainant and the accused in his presence and upon settlement the accused had demanded return of this cheque 27Page 28 given in lieu of the advance. It was further stated by the witness that the complainant’s father had avoided to return the cheque and promised to do so on some other day. There is no reason much less a cogent one suggested to us for rejecting the deposition of this witness who has testified that after the incident of altercation between the two parties the accused has been supplying milk to the witness as he is also in the same business. Non-examination of the father of the complainant who was said to be present outside the Court hall on the date the complainant’s statement was recorded also assumes importance. It gives rise to an inference that the non-examination was a deliberate attempt of the prosecution to keep him away from the court for otherwise he would have to accept that the accused was actually supplying milk to him and that the accused was given the price of the milk in advance as per the trade practice in acknowledgement and by way of security for which amount the accused had issued a cheque in question.

Page 1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 261 2013 (Arising out of SLP (Crl.) 6761/2010) VIJAY ..Appellant Versus LAXMAN & ANR. ..Respondents J U D G M E N T GYAN SUDHA MISRA, J. Leave granted. 2. This appeal by special leave which was heard at length at … Continue reading

Avalon Resorts (P) Ltd. and Holiday Solutions = Although the word ‘Red’ has not been defined anywhere, yet according to the opposite party the word ‘Red’ means summer season commencing from 15th week of the year and continues till 33rd week of every year. – It is difficult to fathom as to why the petitioner should pay the maintenance allowance when he has not utilized such facility. One is supposed to pay the allowance when the thing is utilized by him. The termination of the notice on this ground is illegal. -The opposite parties are entitled to get the rent @10000/- per year from 2001 to 2012. The total comes to Rs.1,10,000/-. It is made clear that the complainant can avail the facility for the next 21 years from today. Before availing the opportunity, he can inform the opposite parties. The complainant is also entitled to rent out the said apartment for one week to any person for which the respondent will not raise any objection but in that case, the complainant shall be responsible for the maintenance. The complainant will not pay any maintenance allowance for the year when he does not utilized the facility for a particular year but otherwise he must pay the maintenance allowance. We, therefore, modify the judgment and direct the petitioner to pay Rs.11,000/- with interest at the rate of 9% from the date of filing of this complaint till its realization. The complainant can avail the facility for the next 21 years. Accordingly, both the revision petitions are disposed of.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   REVISION PETITION NO.  4318 OF  2012  (Against the order dated 31.08.2012 in First Appeal No. 1280 of 2007 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh) Shri Harwinder Singh Randhawa S/o Shri Sohan Singh R/o E/293, Ranjit Avenue Amritsar (Punjab)                                              … Petitioner Versus 1. Avalon Resorts (P) Ltd. Empire Estate, Mehrauli–Gurgaon Road Sultanpur, New Delhi-110030 2. Holiday Solutions, GH-14/34, Ist Floor, Pashchim Vihar New Delhi-110063                                         … Respondents … Continue reading

consumer under Section 2 (d) of the C.P. Act. = complainant hired architectural and structural consultancy of the petitioner/OP for renovation and extension of the Himmatgarh Palace Hotel complex at Jaisalmer. This service was to be provided in two stages, namely; conceptual stage and schematic stage. Complainant paid a sum of Rs.5,30,600/- as consultancy fee to the opposite party but as conceptual design was not complete, complainant filed complaint for refund of fee along with compensation and cost of litigation. OP/respondent filed written statement and submitted that complainant is not a consumer as defined in the Consumer Protection Act, hence, complaint may be dismissed.= hotel was to be developed for self-employment which argument cannot be accepted because, firstly, no averment has been made in the complaint that services were availed for earning livelihood by means of self-employment and secondly complainant being branch of Thar Hotels (P) Ltd.,Jaisalmer, this business cannot come within the purview of business for earning livelihood by means of self-employment. In such circumstances, complainant/respondent does not fall within the purview of consumer under Section 2 (d) of the C.P. Act. Complaint was not maintainable before District Forum and learned District Forum has not committed any error in dismissing complaint, though, on other grounds and learned State Commission has committed error in partly allowing the complaint and petition is liable to be accepted. 7. Consequently, the revision petition filed by the petitioner against the respondent is allowed and impugned order dated 13.4.2011 passed by the learned State Commission is set aside and complaint is dismissed. Complainant/respondent may initiate appropriate proceedings for recovery of fees, etc. before any other Forum/Civil Court. Parties to bear their own cost.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION                                                 NEW DELHI           REVISION PETITION NO. 1660  OF 2011 (From the order dated 13.04.2011 in Appeal No.610/08 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)   Abhikram, Through its Partner Mr. Nimish Patel, Amrit-Lila Bungalow, Off Nagari Hospital Road, Near Gujarat College, Ahmedabad – 380 006                                             …        Petitioner/OP   Versus   Hotel Himmatgarh Palace, through Col. Mansingh Managing Director, Thar Hotel (P) Ltd., Jaisalmer – 345 … Continue reading

The visa card carried a personal accident cover, with risk coverage of Rs.4 lakhs.= even though the visa card was issued, however till declaration of assignment was not filled in, the deceased cannot be regarded as their customer. Therefore the question of payment of any amount does not arise. ? = it is clearly stated that the card issued only with personal accident benefit and he is entitled to the amount for an accident on road or in air travel. Therefore on reading the instruction under “Insurance benefit on you card” it cannot be said that the benefit commences only after filling of declaration of assignment. The evidence put before us do not show that such a condition was put forth by the opponent that the benefit under the card will not be available unless declaration cum undertaking was filled in.”

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI     REVISION PETITION NO. 1902 OF 2011 (Against the order dated 16.09.2010 in  Appeal No.1297/2006 of the State Commission, Gujarat)   Standard Chartered Bank 5th Floor, Sakar -3, Income Tax, Ashram Road Ahmedabad                                                                                                                                             ……….Petitioner   Versus Mr. Naran Bhai ShamjiBhai Bhandari R/o Tarwade, TA Distt. Amreli, Ahmedabad, Gujarat                                                                                                                                  …..Respondent     BEFORE HON’BLE MR. JUSTICE  J. M. MALIK,                               PRESIDING MEMBER HON’BLE MR. VINAY KUMAR, MEMBER … Continue reading

It is well settled principle of law that where a relief is claimed in respect of compensation for wrong to, immoveable property situated within jurisdiction of different Courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situated.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI                          (1)                         REVISION PETITION NO. 3117 OF 2012 (From the order dated 28-05-2012 in Appeal No. 964 to 998/2011   of the State Commission, Haryana) Cosmos Infra Engineering India Ltd. (Previously known as Cosmos Builders & Promoters Ltd.)                                               … Petitioner (s)       Versus Sameer Saksena                                                     … Respondent (s)   (2)                    REVISION PETITION NO. 3247 OF 2012 … Continue reading

the Parliament (Prevention of Disqualification) Act, 1959 as amended by the Amendment Act No.31 of 2006 has no application insofar as election to the office of the President is concerned. The disqualification incurred by a Presidential candidate on account of holding of an office of profit is not removed by the provisions of the said Act which deals with removal of disqualification for being chosen as, or for being a Member of Parliament. If, therefore, it is assumed that the office of Chairman, ISI is an office of profit and the Respondent had held the said office on the material date(s) consequences adverse to the Respondent, in so far as the result of the election is concerned, are likely to follow. The said facts, will therefore, be required to be proved by the election Petitioner. No conclusion that a regular hearing in the present case will be a redundant exercise or an empty formality can be reached so as to dispense with the same and terminate the Election Petition at the stage of its preliminary hearing under Order XXXIX Rule 13. The Election Petition, therefore, deserves a regular hearing under Order XXXIX Rule 20 in accordance with what is contained in the different provisions of Part III of the Supreme Court Rules, 1966. = Election Petition does not deserve a regular hearing.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION ELECTION PETITION NO.1 OF 2012 PURNO AGITOK SANGMA … PETITIONER VERSUS PRANAB MUKHERJEE … RESPONDENT J U D G M E N T ALTAMAS KABIR, CJI. 1 1. The Petitioner herein was a candidate in the Presidential elections held on 19th July, 2012, the results … Continue reading

Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should be presented-Parties marrying in India under Hindu Law-Husband’s petition for dissolution of marriage in Foreign Court-Fraud-Incorrect representation of jurisdictional facts-Husband neither domiciled nor had intention to make the foreign state his home but only technically satisfying the requirement of residence of 90 days for the purpose of obtaining divorce- Divorce decree by foreign court on a ground not available under the 1955 Act-Enforceability of. Civil Procedure Code, 1908: Section 13. Matrimonial dispute-Foreign judgment-When not conclusive. Clause (a)-“Court of competent jurisdiction”-Which is. Clause (b)-Judgment on merits-What is. Clause (c)-Judgment founded on a ground not recognised by Law of India-Effect of. Clause (d)-Judgment obtained in proceedings opposed in principles of natural justice-Effect of-Principles of natural justice-Scope of. Clause (e)-`Fraud’-Scope of-Judgment obtained by fraud- Effect of. Clause (f)-Judgment founded on a breach of law in force in India-Effect of. Section 14-Presumption as to foreign judgments- Expression “Certified copy of a foreign judgment”-Should be read consistent with requirement of Section 86 of Indian Evidence Act. Indian Evidence Act, 1872. Section 41-“Competent court”-Which is. 822 Section 63(1)(2), 65(e)(f), 74(1)(iii), 76, 77 and 86. Foreign judgment-Photostat copy-Admissibility of. Private International Law-Matrimonial dispute- Recognition of foreign judgment-Rules for recognition of foreign matrimonial judgment laid down-Hague convention of 1968 on the recognition of divorce and legal separations- Article 10-Judgment Convention of the European Community. Words and phrases “Residence-Meaning of”. The first appellant and the first respondent were married at Tirupati on 27.2.1975 according to Hindu Law. They separated in July 1978. The appellant-husband filed a petition for dissolution of the marriage in the Sub-Court of Tirupati stating that he was a resident of South Claiborn Avenue, New Orleans, Louisiana, and that he was a citizen of India and that he and his wife last resided together at New Orleans, Louisiana. Subsequently he filed another petition for dissolution of marriage in the Circuit Court St. Louis Country, Missouri, USA alleging that he has been a resident of the State of Missouri for 90 days or more immediately preceding th filing of the petition by refusing to continue to live with the appellant in the US and particularly in the State of Missouri. But from the averments made by him in the petition before the Sub-Judge, Tirupati it was obvious that he and his wife had last resided together at New Orleans, Louisiana and never within the jurisdiction of th Circuit Court of St. Louis Country in the State of Missouri. The respondent-wife filed her reply raising her objections to the maintainability of the petition. She also clearly stated that her reply was without prejudice to her contention that she was not submitting to the jurisdiction of the foreign court. The Circuit Court Missouri assumed jurisdiction on the ground that the 1st Appellant had been a resident of the State of Missouri for 90 days next preceding the commencement of the action in the Court. In the absence of the respondent-wife the Circuit Court, Missouri passed a decree for dissolution of marriage on the only ground that the marriage has irretrievably down. Subsequent to the passing of the decree by the Circuit Court, Missouri, the appellant filed an application for dismissal of his earlier petition before the Sub-Court of Tirupati and the same was dismissed. 823 On 2nd November 1981 the last appellant married appellant No. 2. Thereafter, the 1st-respondent filed a criminal complaint against the appellants for the offence of bigamy. The appellants filed an application for their discharge in view of the decree for dissolution of marriage passed by the Circuit Court, Missouri. The Magistrate discharged the appellants by holding that the complainant-wife had failed to make out a prima facie case against the appellants. The respondent preferred a Criminal Revision Petition before the High Court which set aside the order of the Magistrate by holding (i) that a photostat copy of the judgment of Missouri Court was not admissible in evidence; (ii) since the Learned Magistrate acted on the photostat copy of the judgment, he was in error in discharging the accused. Accordingly the High Court directed the Magistrate to dispose of the petition filed by the appellants for their discharge afresh in accordance with law. Aggrieved by the decision of the High Court the appellants filed appeal in this Court. Dismissing the appeal, this Court, HELD: 1. The decree dissolving the marriage passed by the foreign court is without jurisdiction according to the Hindu Marriage Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court. Further, irretrievable breakdown of marriage is not one of the grounds recognised by the Act of dissolution of marriage. Hence, the decree of the divorce passed by the foreign court was on a ground unavailable under the Act which is applicable to the marriage. Since with regard to the jurisdiction of the forum as well as the ground on which it is passed the foreign decree in the present case is not in accordance with the Act under which the parties were married, and the respondent had not submitted to the jurisdiction of the court or consented to its passing, it cannot be recognised by the courts in this country and is therefore, unenforceable. [828H, 829A, 828E, 834H, 835A] 2. Residence does not mean a temporary residence for the purpose of obtaining a divorce but habitual residence or residence which is intended to be permanent for future as well. [829E] Smt. Satya v. Teja Singh, [1975] 2 S.C.R. 1971, referred to. 3. The rules of Private International Law in this country are not codified and are scattered in different enactments such as the Civil Procedure Code, the Contract ACt, the Indian Succession Act, the Indian Divorce Act, the Special Marriage Act etc. In addition, some 824 rules have also been evolved by judicial decisions. In matters of status or legal capacity of natural persons, matrimonial disputes, custody of children, adoption, testamentary and intestate succession etc. the problem in this country is complicated by the fact that there exist different personal laws and no uniform rule can be laid down for all citizens. Today more than ever in the past, the need for definitive rules for recognition of foreign judgments in personal and family matters, and particularly in matrimonial disputes has surged to the surface. A large number of foreign decrees in matrimonial matters is becoming the order of the day. A time has, therefore, come to ensure certainty in the recognition of the foreign judgments in these matters. The minimum rules of guidance for securing the certainty need not await legislative initiative. This Court can accomplish the modest job within the frame-work of the present statutory provisions if they are rationally interpreted and extended to achieve the purpose. Though the proposed rules of guidance in this area may prove inadequate or miss some aspects which may not be present to us at this juncture, yet a begining has to be made as best as one can, the lacunae and the errors being left to be filled in and corrected by future judgments. [829H, 830A, 831C, F-H] 4. The relevant provisions of Section 13 of the CPC are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our social life. [832A] 4.1 On an analysis and interpretation of Section 13 of CPC the following rule can be deduced for recognising a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows; (i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married; (ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum and contests the claim which is based on a ground available under the matrimonial law under which the parties are married; (iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. [834B-D] 825 5. The High Court erred in setting aside the order of the learned Magistrate only on the ground that the photostat copy of the decree was not admissible in evidence. In the instant case photostat copies of the judicial record of the Court of St. Louis is certified for th Circuit Clerk by the Deputy clerk who is a public officer having the custody of the document within the meaning of Section 76 of the Indian Evidence Act also in the manner required by the provisions of the said section. Hence the photostat copy per se is not inadmissible in evidence. It is inadmissible because it has not further been certified by the representative of our Central Government in the United States as required by Section 86 of the Act. Therefore the document is not admissible in evidence for want of the certificate under Section 86 of the Act and not because it is a photostat copy of the original as held by the High Court. [835B, E, F-G] 6. The Magistrate is directed to proceed with th matter pending before him according to law as expeditiously as possible, preferably within four months. [835G] , 1991( 2 )SCR 821, 1991( 3 )SCC 451, 1991( 2 )SCALE1 , 1991( 3 )JT 33

PETITIONER: Y. NARASIMHA RAO AND ORS. Vs. RESPONDENT: Y. VENKATA LAKSHMI AND ANR. DATE OF JUDGMENT09/07/1991 BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. MISRA, RANGNATH (CJ) CITATION: 1991 SCR (2) 821 1991 SCC (3) 451 JT 1991 (3) 33 1991 SCALE (2)1 ACT: Hindu Marriage Act, 1955: Section 19. Dissolution of marriage-Court to which petition should … Continue reading

whether the disciplinary authority of the erstwhile place of posting, where irregularities stated to have occurred/committed, could institute and complete the disciplinary proceedings against the erring officials (both officer and award staff), notwithstanding the fact that such persons are later posted under the administrative jurisdiction of some other authorities ?

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7515 OF 2012 [Arising out of SLP (Civil) No. 7645 of 2012] UCO Bank & Ors. .. Appellants Versus Sushil Kumar Saha .. Respondent J U D G M E N T K. S. RADHAKRISHNAN, J. 1. Leave granted. 2. The question … Continue reading

“Sorry Teacher”= whereby the Hon’ble Single Judge restrained respondent No.4/the appellant herein and official respondents from releasing the film titled as “Sorry Teacher” pursuant to the Certification made in UA/DIL/2/13/2012/HYD, dated 16.7.2012, pending further orders.= since the film is not yet released, the contentions of the writ petitioners are based upon hear say evidence and are purely speculative, based on inferences drawn in the print and electronic media. Further the Revising Committee, which has examined the film has issued the Certificate for restricted viewing in conformity with the guidelines issued by the Government of India, by judging the film in its entirety for its over all impact. The guidelines prescribed have been adhered to as is evident from the reasons given in support of the Certification. Thus, the Certification made by a High powered Board of Film Certification, which is a specialised composition gives an un-rebuttable presumption in favour of the said statutory Certificate, which cannot be rebutted merely by allegations of the writ petitioners. Within the broad parameters of the guidelines, the film is required to be judged based upon a criteria as to whether an average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest and the said test as laid down by the Hon’ble Supreme Court in the decision fourth cited supra has been followed. Hence, we are of the opinion that the Central Board of Film Certification after thoroughly considering the recommendations of the Revising Committee and after considering all the aspects referred to above, has granted certification to the film in question. We, therefore, do not find that there is any reason to interfere with the said order of the Revising Committee. Accordingly, we allow the writ appeals and vacate the interim orders dated 3.9.2012 passed by the Hon’ble Single Judge in W.P.M.P. Nos. 32956 of 2012 and 33929 of 2012 in Writ Petition No. 25856 of 2012 and 26622 of 2012. In view of the orders passed in the writ appeals allowing the said appeals, no further orders are necessary in the writ petitions. Writ Petition Nos. 25856 of 2012 and 26622 of 2012 are accordingly disposed of. No costs.

THE HON’BLE THE ACTING CHIEF JUSTICESRI PINAKI CHANDRA GHOSE AND HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR Writ Appeal Nos.1128 & 1129 of 2012 And Writ Petition Nos. 25856 of 2012 & 26622 of 2012 24-09-2012 M/s. Suryalok Film Factory, Mumbai R. Malleshwari and others Counsel for Appellant : Mr. K. Durga Prasad Counsel for Respondent … Continue reading

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