Supreme Court

Gandi Doddabasappa v. State of Karnataka

MANU/SC/0223/2017

28.02.2017

Criminal

Accused committed murder of pregnant daughter sentenced to undergo imprisonment for life

Instant criminal appeal arises from judgment and final order passed by High Court of Karnataka wherein High Court has set aside order of acquittal passed by Sessions Court and instead convicted Appellant for an offence punishable under Section 304, Part I of Indian Penal Code, 1860 and sentenced him to undergo 10 years of rigorous imprisonment for killing his daughter.

High Court has found that, fatal injuries suffered by deceased were established from contents of postmortem report proved by doctor. Further, Doctor opined that the injury found on the body of deceased can be attributed to the sickle recovered from the scene of offence. He has further opined that, injuries were sufficient to cause her death. The use of sickle during assault, fortifies conclusion reached by Courts below about homicidal death and including that, injuries resulted in instant death of deceased. Supreme Court opined that, finding of guilt recorded against accused (appellant) by High Court is unexceptionable and does not warrant any interference.

High Court has made no attempt to explain as to how case on hand would be covered by one of five exceptions given in Section 300 of IPC. Unless the case falls under one of specified exception, it cannot be brought under first part or second part of Section 304 of IPC. The first exception will be attracted only if it is possible to hold that, accused whilst deprived of power of self-control by grave and sudden provocation, caused death. From established facts on record, it is seen that Appellant followed his daughter into the women’s public toilet of village and assaulted her. The fatal injuries resulted in her instant death. The first exception, therefore, will have no application. The second exception will be attracted in cases where accused, in exercise in good faith of right of private defence, exceeds power given to him by law and caused injuries resulting in death of victim without premeditation and without any intention of doing more harm than is necessary for purpose of such defence. Even this exception, will have no application to fact situation of present case. The third exception has no application to the present case. The fourth exception is attracted when the crime is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Even this exception has no application to the fact situation of present case. Fifth exception is attracted when person whose death is caused, being above the age of 18 years, suffers death or takes the risk of death with his own consent. Significantly, the defence of the appellant as evinced from his statement under Section 313 of Cr.P.C. is of complete denial and being falsely implicated.

None of exceptions in Section 300 of IPC is attracted in the present case. It would necessarily follow that accused committed murder of his daughter who was in the advanced stage of pregnancy and for which he was liable to be punished with either imprisonment for life or death under Section 302 of IPC alone. In the peculiar factual background of this case, it is not a fit case to impose death penalty. Appeal preferred by Appellant deserves to be dismissed; and show cause notice issued by this Court for enhancement of sentence is made absolute – thereby convicting Appellant for offence punishable under Section 302 of IPC and sentencing him to undergo imprisonment for life.

Tags : Sentence Reduction Validity

Share :

Top

High Court of Bombay

Orange City Mobile Collection v. City Collection And Ors.

MANU/MH/0239/2017

28.02.2017

Intellectual Property Rights

In passing off, defendant could escape liability if it can be shown that added matter was sufficient to distinguish his goods from those of Plaintiff

An order of injunction passed in Trade Mark Suit filed by Respondents temporarily restraining Appellant from using trade mark or trade name “City Collection”, in any manner, whatsoever, for business purposes during pendency of the suit is subject-matter of challenge in this appeal. Defendant being aggrieved by aforesaid order has filed the present appeal. On 13th August, 2014, this Court granted ad interim stay to the order of temporary injunction passed by the trial Court which order was subsequently confirmed.

In present case, subsequent developments sought to be relied upon are the grant of trade mark certificate to Plaintiffs during pendency of suit. When the suit was filed, Plaintiffs had sought to restrain Defendant from passing off its goods as those of Plaintiffs. These subsequent developments have not been brought on record by Plaintiffs by amending plaint in the trial Court. Similarly, no permission of this Court has been sought in that regard under provisions of Order-XLI Rule 27 (1) of the Civil Procedure Code, 1908 (Code). Merely by filing an affidavit, said fact is sought to be relied upon in the appeal. In view of scope of an appeal under provisions of Order-XLIII, Rule 1 (r) of the Code which is limited to examining the correctness of the order passed by the trial Court under provisions of Order-XXXIX, Rules 1 and 2 of the Code, Plaintiffs merely by filing an affidavit cannot seek to rely upon any subsequent event without amending the plaint or by seeking permission to produce additional evidence. The order impugned cannot be assailed by relying upon grounds/facts which do not find place in the pleadings of the parties.

Supreme Court in M/s. S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd. [ (2000) 5 SCC 573]. While considering the difference between a passing off action and one for infringement, it was held that in a passing off action, additions, get-up or trade dress could be relevant to enable the defendant to escape. In infringement cases, such facts do not assume relevance. It was then observed that on the same facts, a suit for passing off may fail but a suit for infringement may succeed. Said decision also holds that in trade mark matters, while considering the prayer for grant of temporary injunction, comparable strength of the cases of either parties has also to be gone into.

The manner in which an action for passing off has to be considered has been laid down in Ayushakti Ayurved Pvt. Ltd. & others Vs. Hindustan Lever Ltd. [2003 (4) Mh. L.J. 915]. It was observed that claims in passing off action are not for an infringement of property rights, but are for misrepresentation by the defendant.

Plaintiffs did not place on record any prima facie material to indicate that due to alleged use of a deceptively similar trade name by Defendant, they had suffered some loss of clientèle or that their turnover had reduced. There is not a single instance either pleaded or placed on record of a customer being misled or deceived on account of the use of deceptively similar trade name by the defendant. Some material in that regard was necessary in facts of the present case for purpose of making out a prima facie case as one of ingredients while seeking interim injunction. Prima facie material in that regard appears to be lacking on record. As observed in Ayushakti Ayurved, at a prima facie stage without any actual instance of witnesses having been deceived, it would be sufficient for the Court to form a broad impression that there is no confusion by and large.

Material placed on record by the plaintiffs insufficient to make out a prima facie case for grant of temporary injunction in their favour. Variety of services provided by Plaintiffs as contrasted with services provided by Defendant, use of the word 'mobile' in the trade name of Defendant which is prima facie found relevant in passing off action and absence of any material to indicate customers being misled or deceived are relevant aspects resulting in absence of making out a prima facie case. These factors would also have a bearing on comparable strength of Plaintiffs' case which has also to be taken into account while considering prayer for grant of temporary injunction. There is further no prima facie material placed on record by Plaintiffs that there has been some fall in their sales as a result of the alleged passing off acts of the defendant which aspect has been found relevant by the Division Bench in Shelke Beverages Pvt. Ltd.

Trial Court while passing the impugned order failed to take into consideration the settled principles of law regulating grant of temporary injunction. On said count, in view of ratio of decision in Wander Ltd. Vs. Antox India (P) Ltd. [1990 (Supp) SCC 727] that has been reiterated in Ramdev Food Products P. Ltd. and Skyline Education Institute (Pvt.), a case for interference with the discretion exercised by the trial Court has been made out. However, in decision in Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories [AIR 1965 SC 980], it has been observed that in an action for passing off, defendant could escape liability if it can be shown that the added matter was sufficient to distinguish his goods from those of Plaintiff. In the light of the position and accepting the statement made on behalf of Defendant that the defendant was willing to increase fonts of the words “Orange” and “Mobile” in its logo to make the entire trade name of the defendant conspicuously visible, Defendant can be directed without prejudice to the rights of the parties to increase the fonts of said words in its logo during pendency of the suit.

Relevant

Wander Ltd. Vs. Antox India (P) Ltd. [1990 (Supp) SCC 727], Ramdev Food Products P. Ltd. and Skyline Education Institute (Pvt.), Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories [AIR 1965 SC 980]

Tags : Injunction Validity Passing off

Share :

Top

Supreme Court

Ravada Sasikala v. State of Andhra Pradesh and Ors.

MANU/SC/0207/2017

27.02.2017

Criminal

Social interest and conscience of the society is to be kept in mind while exercising the discretion pertaining to awarding of sentence

In present case, on basis of statement of injured, an FIR under Sections 448 and 307 of Indian Penal Code, 1860 (IPC) was registered at police station. Accused abjured his guilt and expressed his desire to face the trial. Assistant Sessions Judge, held him guilty under Section 326 and 448 of IPC. At the time of hearing of sentence under Section 235(2) of Code of Criminal Procedure (Cr. PC), convict pleaded for mercy. Trial Judge sentenced him to suffer rigorous imprisonment for one year and directed to pay a fine of Rs. 5,000/- with a default clause under Section 326 of IPC and sentenced him to pay a fine of Rs. 1000/- for offence under Section 448 of IPC with a default clause.

State preferred Criminal Appeal before High Court for enhancement of sentence. Being aggrieved by the judgment of conviction and order of sentence, Accused-Respondent had preferred Criminal Appeal before Sessions Judge, which was later on transferred to the High Court. While dealing with the quantum of sentence, the learned Judge opined that, sentence of imprisonment imposed by trial Court for offence under Section 326 of IPC is modified to the period which Accused has already undergone, while maintaining the sentence of fine for both the offences.

It has been established beyond a trace of doubt by ocular testimony and the medical evidence that some part of her body was disfigured and the disfiguration is due to the acid attack. Conviction under Section 326 of IPC stands established.

In State of Punjab v. Bawa Singh, this Court, after referring to the decisions in State of Madhya Pradesh v. Bablu  and State of Madhya Pradesh v. Surendra Singh, reiterated the settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the nature of crime regard being had to the manner in which the offence is committed. It has been further held that one should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it would shock the conscience of the society. Emphasis was laid on the solemn duty of the court to strike a proper balance while awarding the sentence as imposition of lesser sentence encourages a criminal and resultantly the society suffers.

In B.G. Goswami v. Delhi Administration, Court while delving into the issue of punishment had observed that punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining the question of awarding appropriate sentence. Purpose of referring to precedents is that they are to be kept in mind and adequately weighed while exercising the discretion pertaining to awarding of sentence. Protection of society on the one hand and the reformation of an individual are the facets to be kept in view.

When there is medical evidence that there was an acid attack on the young girl and the circumstances having brought home by cogent evidence and the conviction is given stamp of approval, there was no justification to reduce the sentence to the period already undergone. Supreme Court set aside the sentence imposed by the High Court and restore that of the trial court. Accused-Respondent No. 2 is directed to pay a compensation of Rs. 50,000/- and State to pay a compensation of Rs. 3 lakhs.

Relevant

State of Punjab v. Bawa Singh : (2015) 3 SCC 441; MANU/SC/0039/2015
, State of Madhya Pradesh v. Bablu: (2014) 9 SCC 281; MANU/SC/0752/2014
and State of Madhya Pradesh v. Surendra Singh: (2015) 1 SCC 222; MANU/SC/1030/2014
  B.G. Goswami v. Delhi Administration: (1974) 3 SCC 85; MANU/SC/0081/1973

Tags : Conviction Sentence Quantum

Share :

Top

High Court of Delhi

Forum of SC And ST Legislators And Parliamentarians v. Oil And Natural Gas Corporation Ltd. and Anr.

MANU/DE/0523/2017

27.02.2017

Service

PIL cannot be filed in service matters

Instant writ petition is filed by a non-legal person and which is Forum of Schedule Caste and Schedule Tribes Legislators and Parliamentarians. Petitioner pleads that E-8 Level officers of Respondent no. 1/Oil and Natural Gas Corporation (ONGC) are illegally not being considered for promotion by Respondent no. 1.

In case certain employees are illegally not being considered for promotion, then only such persons have locus standi to approach the Court and not a non-legal person/entity being Petitioner, as, individual persons of a non-legal entity such as the petitioner can claim that they would not be bound by a judgment in this case and nor can this Court issue directions to individual members of Petitioner to file affidavits or compliance affidavits, etc . It is a person who has a locus standi who can approach the Court and not someone else on his behalf, more so in service matters, it is the law that Public Interest Litigation cannot be filed.

Petitioner has no locus standi because persons who would be affected adversely are the only persons who have locus standi to approach this Court and which individuals are not petitioners in this writ petition. Under Section 41 (j) of Specific Relief Act, 1963, injunction cannot be granted to a person who has no personal interest in the matter. Petitioner being only a non-legal person does not have any personal interest, and personal interest would be of individuals who are employees of Respondent no. 1. High Court dismissed writ petition as petitioner is found not to have locus standi.

Tags : PIL Locus standi Service Matters

Share :

Top

Supreme Court

JSW Infrastructure Limited and Anr. v. Kakinada Seaports Limited and Ors.

MANU/SC/0221/2017

01.03.2017

Contract

Superior courts while exercising their power of judicial review must act with restraint when dealing with contractual matters

Instant Civil Appeals are against the judgment of Division Bench of Orissa High Court, whereby Writ Petition, filed by consortium comprising of M/s Kakinada Seaports Limited, M/s Bothra Shipping Service Pvt. Ltd.,M/s MBG Commodities Pvt. Ltd., (second consortium) Respondent Nos. 1-3 herein, was allowed and High Court held that, consortium of the Appellants JSW Infrastructure Limited and South West Port Limited, (first consortium) was not entitled to take part in bid and, therefore, the acceptance of its bid was also held to be illegal and set aside.

This Court in Ramana Dayaram Shetty vs. International Airport Authority of India held that, words used in documents cannot be treated to be surplusage or superfluous or redundant and must be given some meaning and weightage. On a reading of the Policy Clause, some weightage and meaning has to be given not only to the word “next” as done by High Court but also to words “only one private operator” appearing in opening part of the Clause. Words “only one private operator” cannot be treated as surplusage. Entire clause has to be read as a whole in context of purpose of the policy which is to avoid and restrict monopoly. This Clause will apply only when there is one single private operator in a port. If this single private operator is operating a berth, dealing with one specific cargo then alone will he not be allowed to bid for next berth for handling the same specific cargo. The High Court erred in interpreting clause only in context of word “next” and ignored opening part of the Clause which clearly indicates that, Clause is only applicable when there is only one private berth operator. Intention is that when a port is started, if the first berth for a specific cargo is awarded in favour of one private operator then he cannot be permitted to bid for next berth for the same type of cargo. However, once there are more than one private operators operating in the port then any one of them can be permitted to bid even for successive berths. In present case, there are five private operators other than the first consortium.

Law is well settled that superior courts while exercising their power of judicial review must act with restraint while dealing with contractual matters. In Jagdish Mandal vs. State of Orissa, this Court held that evaluation of tenders and awarding contracts are essentially commercial functions and if the decision is bonafide and taken in public interest the superior courts should refrain from exercising their power of judicial review. In present case, there are no allegations of mala fides and Appellant consortium has offered better revenue sharing to the employer.

The view taken in Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. & Anr. was followed in Monte Carlo Ltd. Vs. NTPC Ltd . Thus, it is apparent that in contractual matters, Writ Courts should not interfere unless decision taken is totally arbitrary, perverse or mala fide. High Court erred in interpreting the Clause in the manner which it is done. Clause will apply only when there is single private operator operating a single berth. Once there are more than one private operators then the Clause will not apply. The decision taken by Paradip Port Trust could not be termed to be arbitrary, perverse or mala fide. Therefore, High Court was not justified in setting aside the same. Supreme Court set aside Judgment of High Court and allowed civil appeals.

Relevant

Ramana Dayaram Shetty vs. International Airport Authority of India, Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. & Anr., Monte Carlo Ltd. Vs. NTPC Ltd .

Tags : Bidding Acceptance Validity

Share :

Top

High Court of Delhi

R. P. Luthra v. Union Of India & Anr.

MANU/DE/0501/2017

01.03.2017

Constitution

Process of appointment of Judges by the Collegium system need not remain on hold

In facts of present case, writ petition filed by Petitioner was dismissed by Single Judge observing that, a High Court cannot declare Supreme Court’s judgment as per incuriam. Further, Constitution Bench of Supreme Court vide order dated 19th November, 2015 while reserving the order had stated that the process of appointment of Judges by the Collegium System need not remain on hold. Consequently, argument that no recommendation could have been made without finalizing of memorandum of procedure is not correct. A Division Bench of this Court in D. K. Sharma v. Union of India has also held that the question of suitability or merits of a candidate cannot be made the subject matter of judicial review in a writ proceeding.

Contention of Appellant that, Collegium should not have made the recommendation without finalizing Memorandum of Procedure for improvement of Collegium System of appointment of judges suggested by Constitution Bench of the Supreme Court vide judgment dated 16.10.2015 in W.P.(C) No.13/2015 titled Supreme Court Advocates-on-Record Association & Anr. Vs. Union of India & Ors. is without any substance in light of order of Constitution Bench dated 19th November, 2015 in which while reserving the order, it was made clear that, process of appointment of Judges by the Collegium system need not remain on hold.

Further contention that, impugned recommendation is violative of Articles 14, 16, 19 and 21 of Constitution of India is equally untenable in light of the settled legal position that there is a basic difference between 'eligibility' and 'suitability'. As held in Mahesh Chandra Gupta Vs. Union of India (2009) 8 SCC 273, appointment of a Judge of the High Court/Supreme Court requires 'consultation' and fitness of a person to be appointed is evaluated in the consultation process. Thus, it is clear that, evaluation of worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. It is only in the cases of eligibility that, mechanism of judicial review can be invoked and not otherwise. Therefore, contention of Appellant with regard to judicial review of impugned recommendation of Collegium is rejected.

Names recommended by Supreme Court Collegium under impugned recommendation have already been accepted and they have been appointed as Judges of Supreme Court by President of India. Hence, Article 124(4) of Constitution is attracted and therefore, on that ground also the order under appeal dismissing writ petition warrants no interference.

Relevant

D. K. Sharma v. Union of India, Mahesh Chandra Gupta Vs. Union of India (2009) 8 SCC 273

Tags : Collegium Appointment Validity

Share :