17 April 2017


Judgments

Supreme Court

Dental Council of India v. Dr. Hedgewar Smruti Rugna Seva Mandal, Hingoli and Ors.

MANU/SC/0406/2017

11.04.2017

Education

High Courts should not allow admissions in medical/ dental colleges lacking approval

In instant case, Respondent, a dental college, submitted its scheme for grant of permission to start post-graduate course of Orthodontics and Dentofacial Orthopaedics along with four other specialties. A team of Dental Council of India, Appellant conducted a pre-PG assessment of Respondent-college and submitted its report to Council. Assessment report was considered by Executive Committee observed that, there were deficiencies and college was required to submit compliance. Government of India after considering recommendation of Council, disapproved scheme of Respondent-college for starting MDS course in specialty of Orthodontics and Dentofacial Orthopaedics for academic session 2016-2017.

Being dissatisfied with decision of Government of India which is based on recommendation of Council, Respondent-college knocked at doors of High Court by filing a writ petition. High Court held that, controversy or issue involved in matter requires consideration and due to paucity of time, this Court is unable to decide this matter finally. In such circumstances, impugned communication dated 31st March, 2016 was stayed until next date. Further, Admission process undertaken by Petitioner is at risk of Petitioner. Petitioner shall intimate order passed by this Court to students who are intending to take admission. Assailing order, it is submitted that, High Court could not have, in absence of approval of scheme submitted by college, passed an order of present nature by staying the order and observing that, admission process undertaken by institution would be at its own risk.

Court should not pass such interim orders in matters of admission, more so, when institution had not been accorded approval. Such kind of interim orders are likely to cause chaos, anarchy and uncertainty. And, there is no reason for creating such situations. There is no justification or requirement. High Court may feel that, while exercising power under Article 226 of Constitution, it can pass such orders with certain qualifiers as has been done by impugned order, but it really does not save the situation. It is because an institution which has not been given approval for course, gets a premium. That apart, by virtue of interim order, Court grants approval in a way which is subject matter of final adjudication before it. Anxiety of students to get admission reigns supreme as they feel that, institution is granting admission on basis of an order passed by High Court.

High Court has to realize nature of lis or controversy. It is quite different. It is not a construction which is built at risk of a Plaintiff or the Defendant which can be demolished or redeemed by grant of compensation. It is a situation where order has potentiality to play with career and life of young. There is no reason to invite a disaster by way of an interim order. A Judge has to constantly remind himself about precedents in field and not to be swayed away by his own convictions.

In the instant case, precedents are clear and luculent. It does not allow any space for any kind of equivocation. In Priya Gupta, Court had requested High Courts to ensure strict adherence to prescribed time schedule, process of selection and role of merit and except in very exceptional cases, to decline interim orders. Adjudication in accordance with precedents is cultivation of humility. As long as a precedent is binding under the constitutional scheme, it has to be respected by all.

Supreme Court held that, impugned order passed by Single Judge of High Court is unsustainable. Respondent-college has been granted approval for academic session 2017-2018. By virtue of interim order passed by High Court, three students had been admitted and they are prosecuting their studies. Students who have been admitted shall be allowed to continue their courses, but their seats shall be adjusted from academic session 2017-2018. Respondent-college cannot be allowed to get a premium. The grant of bounty is likely to allow such institutions to develop an attitude of serendipity. Such a culture is inconceivable. Therefore, apart from adjustment of seats for the next academic session, Respondent-college is directed to deposit a sum of Rs. 30 Lakhs before Registry of this Court.

Relevant

Priya Gupta v. State of Chhattisgarh and Ors. MANU/SC/0437/2012

Tags : Interim order Validity

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Supreme Court

State of Rajasthan v.  Ramanand

MANU/SC/0412/2017

11.04.2017

Criminal

When exercising appellate jurisdiction, Supreme Court has power to pass any order

Respondent was convicted by trial Court under Sections 302 and 201 of Indian Penal Code, 1860 for having committed murder of his wife and daughter and was sentenced to undergo life imprisonment for offence under Section 302 and 3 years RI for that under Section 201 of Indian Penal Code. High Court acquitted him of charges under Sections 302 and 201 of Indian Penal Code but convicted him under Section 306 of Indian Penal Code and sentenced him to undergo 5 years RI, which judgment is under challenge in this appeal by Special Leave. Issue for consideration in present case is whether Respondent could be said to be author of crime.

Medical evidence on record is very clear and precise that, deaths were as a result of strangulation. Having gone through post-mortem report, testimony of PW10 Doctor and photographs, it is very clear that deaths of were not as a result of burn injuries. They died of strangulation and their bodies were sought to be set afire in order to create an impression as if they had died of burn injuries. Finding by trial Court was therefore completely correct. Fact that deaths are as a result of culpable homicide is beyond any doubt.

Entire case of prosecution rests purely on circumstantial evidence. It is true that, deaths have occurred in a room occupied by Respondent along with wife and daughter. But no witness has been examined to suggest that, Respondent was at or around his residence at relevant time. Marriage was more than 10 years old and as such, no statutory presumption on any count could be drawn, more particularly, when none of prosecution witnesses had supported case of prosecution as regards demands of dowry and harassment. Apart from strangulation marks, nothing was found in post-mortem report regarding any other bodily injury. Absence of any evidence as regards dowry or related harassment also nullifies element of presence of any motive on part of Respondent. None of prosecution witnesses alleged anything against Respondent nor are there any other supporting circumstances such as discovery of any relevant fact.

Ext. D-1 which was report made by Respondent. It undoubtedly shows that, Respondent himself had opened door and found bodies of wife and daughter lying with injuries. In face of Report (Ext. D-1), it is not possible to accept assertion that, door was locked from inside and was pushed open by PW7 and others. Locking of door from inside would have been consistent with theory of suicide but that theory stood demolished as a result of medical evidence. Respondent himself had opened door and found bodies having burnt.

Section 162 of Code of Criminal Procedure, 1973 govern cases where statements are made to a police officer "in course of an investigation" under Chapter XII of Code of Criminal Procedure. Statement Ext. D-1 was neither given in course of an investigation, nor could it be termed as a confession. Further, cross-examination of PWs 14 and 15 would show that, Respondent stood by and relied upon that statement. However, that by itself does not establish beyond any doubt that, it was the Respondent alone who was responsible for having caused deaths of wife and daughter. Even if circumstance emerging from Ext. D-1 is taken to be against Respondent, that by itself without any connecting material on record, is not sufficient to bring home case against Respondent. In a case where prosecution is coming up against acquittal of Accused and is praying for conviction on a graver charge, Accused is entitled to plead for acquittal.

While considering similar plea for acquittal, Supreme Court in Chandrakant Patil v. State observed that Powers of Supreme Court in appeals filed under Article 136 of Constitution are not restricted by appellate provisions enumerated under Code of Criminal Procedure or any other statute. When exercising appellate jurisdiction, Supreme Court has power to pass any order. The aforesaid legal position has been recognized by a Constitution Bench of this Court in Durga Shankar Mehta v. Raghuraj Singh  and later followed in a series of decisions (vide Arunachalam v. P.S.R. Sadhanantham and Delhi Judicial Service Assn. v. State of Gujarat) .

It is now well settled that, Supreme Court's powers under Article 142 of Constitution are vastly broad-based. That power in its exercise is circumscribed only by two conditions, first is, that it can be exercised only when Supreme Court otherwise exercises its jurisdiction and the other is that the order which Supreme Court passes must be necessary for doing complete justice in the cause or matter pending before it.

In view of medical evidence on record, deaths could never be termed as a case of suicide and consequently, conviction of Respondent under Section 306 of Indian Penal Code was wholly unjustified. At same time, there is nothing on record to conclusively establish that, Respondent was author of crime. Circumstances on record do not Rule out every other hypothesis except guilt of accused. However strong the suspicion be, Respondent is entitled to benefit of doubt and cannot be convicted under Section 302 of Indian Penal Code. Thus, while rejecting present appeal, Respondent is acquitted of charge under Section 306 of Indian Penal Code.

Relevant

Chandrakant Patil v. State MANU/SC/0081/1998
  Durga Shankar Mehta v. Raghuraj Singh MANU/SC/0099/1954
 Arunachalam v. P.S.R. SadhananthamMANU/SC/0073/1979
  Delhi Judicial Service Assn. v. State of Gujarat MANU/SC/0478/1991

Tags : Acquittal Validity Benefit of doubt

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High Court of Delhi

Akhilesh Verma and Ors. V. Union of India and Ors.

MANU/DE/0922/2017

10.04.2017

Service

Appointment to post of Secretary by direct recruitment without exhausting channel of transfer on deputation is illegal

Petitioners in both writ petitions, who claim to be artists, sought a writ of quo warranto to set aside appointment of Dr. Sudhakar Sharma as Secretary of Lalit Kala Akademi, New Delhi alleging that, his appointment was in violation of provisions of Lalit Kala Akademi (Secretary, Lalit Kala Akademi) Recruitment Rules, 1999. Petitioners also challenged order passed by Government of India, Ministry of Culture whereby order of suspension of Dr. Sudhakar Sharma was revoked and he was reinstated into service.

In exercise of the powers conferred by Clause 11.1 of Memorandum of Association and Rules and Regulations of Lalit Kala Akademi, "Recruitment Rules, 1999" have been made to regulate method of recruitment to post of Secretary of Lalit Kala Akademi. Rule 4 of said Rules provides that, method of recruitment, age limit, qualifications and other matters relating to the said post shall be as specified in columns (5) to (12) of the Schedule and bye-law (9) of Lalit Kala Akademi (Services) Byelaws. Schedule to Recruitment Rules shows that, post of Secretary is a selection post and that, method of recruitment shall be by transfer on deputation, failing which by direct recruitment. In case of transfer on deputation, it is prescribed that, same shall be by deputation of persons in group 'A' service or equivalent in Central or State Government organizations including Museums, Galleries, etc. or university system or cultural organizations possessing essential qualifications and experience prescribed for direct recruitment. It was also made clear that period of deputation will ordinarily not exceed three years and in any case shall not exceed five years.

Appointment of Dr. Sudhakar Sharma on basis of decision of Selection Committee is not in conformity with provisions of Recruitment Rules, 1999. In fact, by order, it was held by Akademi itself that, appointment of Dr. Sudhakar Sharma was void ab initio. However, said order was set aside by Central Government and he was reinstated into service. Allegations of misconduct and misappropriation of funds against Dr. Sudhakar Sharma were also found to be established after due inquiry by Akademi and he was dismissed from service by Akademi. Said order was also set aside by the Union of India.

However, fact remains that inquiry proceedings initiated against Dr. Sudhakar Sharma have been revived by Akademi by and same has also been reiterated by Central Government. Despite the same, it is un-understandable as to why said inquiry which was initiated long back could not be concluded till date. No justifiable explanation could be shown by the Government of India for delay except stating that proposal is pending for referring inquiry proceedings to Chief Vigilance Commissioner.

Allegation in writ petitions that, continuation of Dr. Sudhakar Sharma is not in interest of management of Akademi therefore, cannot be simply brushed. Union of India, Ministry of Culture as well as Lalit Kala Akademi shall file detailed counter affidavits explaining as to how the appointment of Dr. Sudhakar Sharma can be justified and further explaining the delay in concluding disciplinary proceedings initiated against Dr. Sudhakar Sharma. Union of India, Ministry of Culture and Lalit Kala Akademi shall not allow Dr. Sudhakar Sharma to interfere with administration of Lalit Kala Akademi in any manner whatsoever pending the inquiry against him.

Tags : Appointment Validity Rules Compliance

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High Court of Delhi

Anand Chauhan v.  Directorate of Enforcement

MANU/DE/0928/2017

10.04.2017

Criminal

PMLA has an over-riding effect and provisions of Cr. PC would apply only if they are not inconsistent with provisions of PMLA

Petitioner has preferred present bail application seeking regular bail under Section 439 of Code of Criminal Procedure,1973 (Cr. PC) read with Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA). Learned Special Judge held that, case is at stage of investigation, and there is enough material on record which shows how Petitioner invested cash monies in LIC policies on behalf of Virbhadra Singh and his family, and was actively involved in laundering of money. Special Judge opined, on basis of investigation, till that it cannot be said that, Petitioner is just at periphery of offence and, accordingly, bail application of Petitioner was dismissed. . Case of prosecution is that, on basis of preliminary enquiry registered on 17.06.2015, CBI registered FIR under Sections 13(2) read with Section 13(1) (e) of Prevention of Corruption Act, 1988 (P.C. Act) and Section 109 of Indian Penal Code, 1860

Offence of "criminal misconduct" is defined in Section 13 of P.C. Act to mean, possession of public servant "or any person on his behalf at any time during period of his office of pecuniary resources or property disproportionate" to known sources of income of public servant, which public servant cannot specifically account for. Thus, even a person who is not a public servant has been noticed in said definition of "criminal misconduct" as defined in Section 13(1) (e) of P.C. Act. Offence of criminal misconduct is committed by public servant, but offence under Section 13(1) (e) of P.C. Act may also rope in-as an abettor, any person who is in possession of such un-explained pecuniary resources and property disproportionate to known sources of income of public servant, i.e. who holds said pecuniary resources or property on behalf of public servant.

Section 3 of PMLA defines offence of money laundering as, "whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering".

Expression "proceeds of crime" is defined in Section 2(u) of PMLA to mean "any property derived or obtained, directly or indirectly, by any person as result of criminal activity relating to a scheduled offence ". Offence alleged against Sh. Vir Bhadra Singh in FIR/ RC registered by CBI under Section 13(2) read with Section 13(1) (e) of the P.C. Act is a scheduled offence and thus, allegation against Petitioner is that, proceeds of crime of Sh. Vir Bhadra Singh have been laundered by him.

A reading of Section 3 of PMLA shows that, person who commits offence of money laundering need not necessarily be a one who may have been involved in acquisition of proceeds of crime. Thus, even if Petitioner herein is assumed to be not guilty of offence under Section 13(2) read with Section 13(1) (e) of the P.C. Act, nevertheless, he is a person charged with abetting said offence and with laundering of proceeds of crime of Sh. Vir Bhadra Singh.

In Gautam Kundu, Supreme Court has categorically held that, conditions specified in Section 45 of PMLA are mandatory and needs to be complied with. In this regard, Supreme Court placed reliance on Sections 65 and 71 of PMLA. Section 65 of PMLA provides that, provisions of Code shall apply insofar as they are not inconsistent with provisions of PMLA and Section 71 of PMLA provides that, provisions of PMLA shall have over-riding effect, notwithstanding anything inconsistent therewith contained in other law for time being in force. Thus, PMLA has an over-riding effect and provisions of Code would apply only if they are not inconsistent with provisions of PMLA. Supreme Court has held that, compliance of provisions of Section 45 of PMLA should be insisted upon by High Court as well, while considering an application under Section 439 of Cr.P.C. In present case, prima facie finding returned by trial Court with regard to Petitioner's involvement in scheduled offence is unexceptionable. This Court is bound by decision of Supreme Court in Gautam Kundu. Supreme Court dismissed the Petition.

Relevant

Gautam Kundu vs. Manoj Kumar, Assistant Director, Eastern Region, Directorate of Enforcement (Prevention of Money Laundering Act) Govt. of IndiaMANU/SC/1453/2015

Tags : Application Bail Grant

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Central Information Commission

Kanchan Alok v. CPIO, National Insurance Company Limited

MANU/CI/0197/2017

11.04.2017

Right to Information

Vital information pertaining to rules for insurance claims should be widely disseminated and displayed on website

Appellant, vide her RTI application sought information regarding certified copy of extracts of rule/regulation/manual/policies/guidelines, primarily relating to transfer related papers to insurer post sanction of claim in vehicle theft case and issues related thereto. Appellant's representative stated that, desired information had not been provided.

Commission observed that, there is complete negligence and laxity in public authority in dealing with RTI applications. It is abundantly clear that, such matters are being ignored and set aside without application of mind which reflects disrespect towards Right to Information Act, 2005 itself. Commission expressed its displeasure on casual and callous approach adopted by Respondent in responding to RTI application. Conduct of Respondent was against spirit of RTI Act, 2005 which was enacted to ensure greater transparency and effective access to the information. It is evident that, no reply had been provided by Respondent in the matter, which is a grave violation of provisions of RTI Act, 2005. Commission, instructs CPIO to show-cause why action should not be taken under the provisions of the Act for this misconduct and negligence.

Issues raised in RTI application related to rules/guidelines primarily relating to transfer related papers to insurer post sanction of claim in vehicle theft case which ought to be suo motu disclosed as per Section 4 of RTI Act, 2005. Though Respondent submitted that all such information has been disseminated, it is essential that vital and critical information pertaining to rules for insurance claims should be widely disseminated and displayed on the website for the benefit of all concerned.

Public Authority is advised to re-examine methodology by which RTI applications are dealt with in their office and evolve a robust mechanism for quick disposal of RTI matters in letter and spirit respecting provisions of RTI Act. It was felt that, being a service related organization, it must be fully geared to address the needs and requirements of its clients expeditiously. With innovations and explosion of technological tools available in country, Public Authority must make concerted efforts to improve its service delivery mechanism in the interest of its customer. Commission directs CPIO, Delhi to provide certified copy of information sought to Appellant within a period of 15 days from date of receipt of this order. In view of unconditional apology tendered by the then CPIO, show cause proceedings in the matter stand dropped.

Tags : Information Dissemination Suo motu

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Customs, Excise and Service Tax Appellate Tribunal

Aakash Enterprises V. Commissioner of Customs, New Delhi

MANU/CE/0246/2017

07.04.2017

Customs

Transaction value has to be admitted as assessable value unless proved to be incorrect

Appellant imported various automobile parts under cover of Bill of Entry on declared value. Such goods were cleared from Customs after paying customs duty. Subsequently, Appellants premises were put to search along with his residential premises, two shops and godown and goods imported vide above Bill of Entry was put to seizure on doubt of under valuation. Some other goods lying in the premises were also seized. Thereafter, statements of partner of importer firm were recorded along with statement of other persons. During course of investigations, Appellant took categorical stand that, goods other than one imported vide Bill of Entry dated 29th August, 2013 are locally procured goods and as such cannot be put to seizure.

Transaction value declared by importer stand rejected by Commissioner on sole ground that, NIDB data for contemporaneous imports reflects higher value of identical goods. This fact shows that, there is no independent evidence with Revenue to first reject transaction value. It is well settled law that, transaction value has to be admitted as assessable value unless proved to be incorrect. For such purpose, proving value to be wrong declaration, independent evidence is required and mere reference to NIDB data is not sufficient. It is held by various Courts that, NIDB data cannot be made basis for enhancement of value. One such reference can be made to Tribunal's decision in case of Commissioner of Central Excise Delhi vs. Anshikha Overseas as also to Tribunal's decision in case of Divine International vs. Commissioner of Customs, New Delhi. As such, enhancement of value is not justified.

As regards other goods seized from premises, Appellants, even during course of investigation itself, had taken a categorical stand that, said goods were purchased by him locally from various traders. On verification of sellers, address of shops etc. shown in sales challans, were found to be either false or non-existence. When Appellant was confronted with said fact, he clearly deposed that, goods were purchased by him from sales representative and sale was not directly from shops. Appellant has also produced sales tax challan along with sales bill on record. This fact established that goods stand purchased in India only.

As regards their foreign origin and smuggled character, even though said goods are considered to be imported goods, same are not notified in terms of provisions of Section 123 of Customs Act, 1962. As such, burden to establish that, they are smuggled into India lies heavily on Revenue and is required to be discharged by production of sufficient evidence. In present case, there is no such evidence on record, though Commissioner has made reference to certain Bill of Entries, which according to learned DR covers the goods in question. Even if that be so, it is established that, goods were imported under said Bill of Entries and their value cannot be enhanced based upon NIDB data. As such, confiscation of said goods or enhancement of value of same is neither warranted nor justified.

Tribunal set aside enhancement of value and confiscation of goods. Imposition of penalty upon Appellant is not called for, same is also set aside.

Relevant

Commissioner of Central Excise Delhi vs. Anshikha Overseas, Divine International vs. Commissioner of Customs, New Delhi: MANU/CE/0328/2016

Tags : Goods Valuation Confiscation Penalty

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