High Court of Bombay

Sachin Vs. Vrushali

MANU/MH/2059/2018

10.07.2018

Family

Before passing order of service of summons, it was duty of Court to examine Process Serving Officer/Bailiff, if his report is not on affidavit

The Appellant-husband ('the Respondent') against whom decree of dissolution of marriage has been passed in the petition filed by the Respondent-wife ('the Petitioner') by the Principal Judge, Family Court, on the ground of cruelty and desertion under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, has preferred present appeal being aggrieved by the said decree. Respondent/husband submitted that, the learned Judge of the Family Court erred in passing ex-parte decree of divorce. The only point that arises for determination is whether the learned Judge of the Family Court, Aurangabad erred in passing ex-parte decree by holding service of summons on respondent/husband, as proper and legal.

In the present case, admittedly, no vakalatnama has been filed on behalf of Respondent/husband in the petition before the Judge, Family Court so as to prove the service of summons on the Respondent naturally therefore, the Petitioner will have to show that, the summons was served on the Respondent in the manner provided by the Code of Civil Procedure in the light of second part of Rule 19 of the Family Court Rules, 1988 by the affidavit of the Bailiff and of the person who attended Bailiff for the purpose of identification at the time of service. Admittedly, in the present case Bailiff has not filed affidavit regarding service of summons on the Respondent and he has only given report dated 30th June, 2017 on summons. So also, there is no affidavit of person who attended the Bailiff for the purpose of identification at the time of service of summons on the Respondent. Thus, it is obvious that there is no compliance of Rule 19 of the Family Court Rules.

In the circumstances, in fact, before passing the order of service of summons on the Respondent-husband, as observed by the Division Bench in the case of Deepali vs. Pratap, it was the duty of the court to examine Process Serving Officer/Bailiff, if his report is not on affidavit. The order regarding service of summons on the Respondent/husband passed by the learned Judge of the Family Court to proceed ex-parte against the respondent is not proper as there was no proper service of summons on him. Therefore, impugned ex-parte decree of dissolution of marriage passed on the basis of said ex-parte order is against principles of natural justice as no proper opportunity was accorded to the respondent/husband and the same cannot be sustained on the said ground alone. The impugned decree is set aside and petition remanded back to the family Court for deciding the same afresh with certain directions. The appeal is allowed.

Relevant

Deepali vs. Pratap MANU/MH/2475/2014

Tags : Service Summons Ex-parte decree Validity

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Supreme Court

Vinay Sharma and Ors. Vs. State of NCT of Delhi and Ors.

MANU/SC/0711/2018

09.07.2018

Criminal

Review in a criminal proceeding is permissible only on ground of error apparent on face of record

Present review petitions have been filed by two applicants Vinay Sharma-Accused No. 1 and Pawan Kumar Gupta-Accused No. 2 to review the judgment of present Court by which judgment present Court had dismissed the criminal appeals filed by the Petitioners challenging the order of the High Court confirming the death reference and dismissing the criminal appeals filed by the Petitioners against the order of conviction and award of death sentence. Both the Petitioners were tried for rape and murder of a 23 years' age lady-Nirbhaya. The trial Court convicted the Petitioners along with three others and awarded death sentence to all the four Accused. Death reference was sent by the trial court to the High Court. Separate criminal appeals were also filed by the Petitioners challenging the judgment of the trial court. Delhi High Court vide its judgment confirmed the death penalty to all the four convicts including Petitioners.

The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, Rule 1 of Supreme Court Rules, 2013, and in a criminal proceeding except on the ground of an error apparent on the face of the record. Normally, in a criminal proceeding, review applications cannot be entertained except on the ground of error apparent on the face of the record.

Further, the power given to this Court under Article 137 of Constitution is wider and in an appropriate case can be exercised to mitigate a manifest injustice. By review application, an applicant cannot be allowed to reargue the appeal on the grounds which were urged at the time of the hearing of the criminal appeal. Even if the applicant succeeds in establishing that there may be another view possible on the conviction or sentence of the Accused that is not a sufficient ground for review. Present Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in the earlier decision due to judicial fallibility. There has to be an error apparent on the face of the record leading to miscarriage of justice to exercise the review jurisdiction under Article 137 of Constitution read with Order 40 Rule 1. There has to be a material error manifest on the face of the record with results in the miscarriage of justice.

The Constitution Bench of this Court in Bachan Singh examined the constitutional validity of death penalty as provided under Section 302 of Indian Penal Code, 1860 (IPC). After elaborately considering the existence of death penalty in the Penal Code, constitutional provisions of Articles 19 and 21 of Constitution , and international covenant on civil and criminal rights, this Court held that, death penalty as contained in Penal Code is constitutionally valid. The death penalty remains in the Penal Code, the Courts cannot be held to commit any illegality in awarding death penalty in appropriate cases.

In the review petitions, Petitioners cannot ask the Court to re-hear the appeals on merits which submissions had already been noted, considered and rejected. To show the involvement of the bus, present Court has also elaborately considered the evidence of PW-81, owner of the bus and PW-16, Manager (Admn.) of Birla Vidya Niketan School, Pushp Vihar who have stated that, the bus was routinely driven by Ram Singh (deceased Accused) and he was the driver of the bus.

Involvement of the bus was also held to be substantiated by matching of DNA profile of the material objects lifted from the bus which were found consistent with that of the victim and the complainant. Matching of DNA profile developed from the articles seized from the bus like 'hair' recovered from the third left row of the bus and the blood-stained seat cover of the bus and the bunch of hair recovered from the floor of the bus with the DNA profile of the victim was held to be unimpeachable evidence establishing the involvement of the bus in the commission of the offence. The oral and scientific evidence has been elaborately considered by this Court in upholding the findings of the High Court as to the involvement of the bus. The Petitioner/Accused cannot re-agitate the same point again.

All the contentions raised regarding the three dying declarations have been considered in detail. Considering all the three dying declarations, in the light of well-settled principles, this Court held that, all the three dying declarations are true, voluntary and consistent. Insofar as third dying declaration, this Court, held that the dying declaration made through signs, gestures or by nods are admissible as evidence and that proper care was taken by PW-30, Pawan Kumar, Metropolitan Magistrate and the third dying declaration recorded by in response to the multiple-choice questions by signs, gestures made by the victim are admissible as evidence.

The Petitioners cannot be allowed to re-agitate the same issue again and again. The issue of juvenile was considered by the trial court and trial court on the basis of the materials on record held that, Petitioner No. 1 was not a juvenile. Regarding the submission of the learned Counsel for Petitioner No. 2 that he was juvenile at the time of occurrence, The trial court had rightly concluded that, Petitioner No. 2 was not a juvenile.

Criminal appeals filed by the Appellants (Petitioners herein) against the judgment of the High Court were heard by present Court giving them sufficient time for raising all possible submissions. The hearing in criminal appeals continued about 38 days. In review petitions, no ground has been made out which may furnish any ground to review the judgment. Review petitions dismissed.

Tags : Review death penalty Maintainability

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Customs, Excise and Service Tax Appellate Tribunal

Alkraft Thermotechnologies Pvt. Ltd. Vs. Commissioner of GST & Central Excise, Chennai North Commissionerate

MANU/CC/0164/2018

09.07.2018

Excise

CENVAT credit on GTA service is not eligible from factory to buyer's premises and eligible only upto place of removal which is factory gate

The Appellants are manufacturers of radiators and parts and are availing the facility of CENVAT credit of duty paid on inputs and service tax paid for input services. On verification of records, it was noticed that during the periods September 2009 to February, 2010 and October 2014 to April 2015, May 2015 to February 2016, the Appellant had availed CENVAT credit on outward transportation of goods for the goods cleared from their factory gate to their own units at Jamshedpur and Uttarakhand on stock transfer basis. Show cause notices were issued proposing to disallow the credit and for recovery of the CENVAT credit along with interest and for imposing penalties. After due process of law, the original authority confirmed the duty demands and imposed penalties. In appeal, Commissioner (Appeals) upheld the same. Aggrieved, the Appellants are now before this Tribunal.

The Hon'ble Apex Court in the case of Commissioner of Central Excise Service Tax vs. Ultratech Ltd. had laid the law that, after 1st April, 2008 CENVAT credit on GTA service is not eligible from the factory to buyer's premises and eligible only upto the place of removal which is the factory gate.

The original definition of 'input service' contained in Rule 2(l) of the Rules, 2004 used the expression 'from the place of removal'. As per the said definition, service used by the manufacturer of clearance of final products 'from the place of removal' to the warehouse or customer's place etc., was exigible for Cenvat Credit. This stands finally decided in Civil Appeal No. 11710 of 2016 (Commissioner of Central Excise Belgaum v. M/s. Vasavadatta Cements Ltd.) vide judgment dated January 17, 2018. However, vide amendment carried out in the aforesaid Rules in the year 2008, which became effective from March 1, 2008, the word 'from' is replaced by the word 'upto'. Thus, it is only 'upto the place of removal' that service is treated as input service. This amendment has changed the entire scenario. The benefit which was admissible even beyond the place of removal now gets terminated at the place of removal and doors to the Cenvat credit of input tax paid gets closed at that place. This credit cannot travel therefrom. It becomes clear from the bare reading of this amended Rule, which applies to the period in question that, the Goods Transport Agency service used for the purpose of outward transportation of goods, i.e. from the factory to customer's premises, is not covered within the ambit of Rule 2(l)(i) of Rules, 2004. Whereas the word 'from' is the indicator of starting point, the expression 'upto' signifies the terminating point, putting an end to the transport journey.

The decisions relied by the Appellant were rendered prior to the judgment in the case of Ultratech Ltd.. Following the judgment of the Hon'ble Supreme Court, Present Tribunal is of view that, the credit is not eligible. The impugned orders do not call for any interference. The appeals are dismissed.

Tags : Credit Eligibility Demand Confirmation

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High Court of Jammu and Kashmir

Mehraj-ud-Din Nadroo and Ors. Vs. State of J&K

MANU/JK/0503/2018

07.07.2018

Narcotics

Deprivation of liberty must be considered a punishment, unless it can be required to ensure that, an accused person will stand his trial when called upon

The Applicants filed an application for the grant of bail in their favour in the FIR before the Court of the learned Additional Sessions Judge, which came to be rejected. Aggrieved by present order, the Applicants filed another application before present Court for the grant of bail in their favour on the grounds, that the charge-sheet has been laid against them before the competent Court, wherein the police authorities have concluded that they are involved in the commission of offences under Section 8/15 of NDPS Act. The Applicants have further stated that, they have been falsely implicated in the case. The mandatory provision of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) have been violated in the case with impunity and, therefore, the detention of the Applicants is illegal and unjustified. It has also been averred that the rigor of Section 37 of the NDPS Act, does not apply to the case on hand. The question, that arises for consideration at first is whether a successive application for bail will or will not lie before present Court.

As per the order of the trial Court, the quantity of the contraband recovered from the possession of the accused does not fall within the parameters of commercial quantity but it is an intermediary one and, therefore, the application of the applicants had to be considered under the provisions of Section 497 of Code of Criminal Procedure, 1973 (CrPC). It is only on the application of the rigor of Section 37 of NDPS Act to a given case that bail can be withheld. In any case which does not fall within the purview, scope and definition of Section 37 of the NDPS Act, grant of bail has to be considered on the agility and celerity of Section 497 of Cr. PC. Therefore, a realistic view and a pragmatic approach has to be taken in such a case.

The settled position of law as evolved by the Supreme Court is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of "bail or jail" in non-bailable offences. Court has to utilize its judicial discretion, not only that as per the settled law, the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test.

The rigor of Section 37 of the NDPS Act does not apply to the instant case. It also needs to be said that, the case of the applicants does not fall within the parameters of the offences that are punishable with death or imprisonment of life. Therefore, there appears to be no reasonable ground for declining bail to the applicants. The maxim of the law of bails which has its application to the case on hand where the quantity of narcotics recovered from the applicants falls within the scales of an intermediary quantity, for which the punishment provided is upto 10 years and a fine of rupees one lac is "bail and not jail".

Deprivation of liberty is tantamount to punishment. The principal that punishment begins after conviction and that every man is deemed to be innocent unless duly tried and duly found guilty has its application to the facts of the instant case in all the fours. The object of the bail is to seek attendance and appearance of the accused at the trial by a reasonable amount of bail. Bail cannot be withheld as a means of punishment.

The applicants are admitted to bail, in case they furnish a personal bond to the tune of Rs. 50,000 each with a surety of the like amount each to the satisfaction of the learned Court below on the terms and conditions (i) That they shall present themselves before the Court, as and when asked to do so. (ii) That they shall not leave the territorial limits of the jurisdiction of the trial Court without seeking permission. (iii) That they shall not tamper or intimidate the prosecution witnesses.

Tags : Bail Denial Validity

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High Court of Bombay

Kaveri Vs. The State of Maharashtra and Ors.

MANU/MH/2037/2018

06.07.2018

Election

Benefit of an interpretation must favour a person who is likely to suffer an irreparable harm and serious prejudice

By present petition, the Petitioner prays that, the impugned order passed by the District Collector, be quashed and set aside. The Petitioner has been removed as a member of the Gram Panchayat as well as Sarpanch of Village Gram Panchayat, Babhalkhunta under Section 13-A of the Maharashtra Village Panchayats Act, for having failed to resign as per Rule 41-A of the Maharashtra Gram Panchayat Election Rules, 1959.

The Petitioner was elected as a member of the Babhalkhunta Gram Panchayat on 9th October, 2017 after the polling took place on 7th October, 2017. She also contested the elections to the position of a Sarpanch since the said position was to be directly filled in by elections held on 7th October, 2017 under Section 30(1A) of the Maharashtra Village Panchayats Act. She was elected as a Sarpanch on 9th October, 2017.

Under Rule 41-A of the Maharashtra Gram Panchayat Election Rules, 1959, a period of seven days is prescribed, from the date of the official publication of the notice declaring the results of the elections, for a candidate to resign from one post if he has been elected to more than one post in the said elections. A notification was published by the District Collector on 11th October, 2017 notifying the results of the elections. By excluding the said date, the Petitioner was expected to resign from all but one position within seven days, which would be on or before 18th October, 2017. It is the case of the Petitioner that she has written down her resignation from the position of member of the Gram Panchayat on 13th October, 2017, signed it and posted it by RPAD to the District Collector, Beed, on the same day, from her village.

Section 13-A does not prescribe a specific time frame. It only indicates that, the resignation must be written and signed by the candidate and should be addressed to the authorized officer. It is Rule 41-A which prescribes the period of seven days from the date of the posting of the results of the election by the Returning Officer, to enable a candidate for resigning from all but one post. As such, if Section 13-A and Rule 41-A are to coexist since the Rules are accepted to be a hand-maid to the provisions, both these provisions will have to be interpreted harmoniously so as to ensure that the Rule should not run counter to the section. Neither Section 13-A nor Rule 41-A express in any manner that the resignation must be written, signed and delivered to the authorized officer within seven days from the date of the official announcement of the election results.

It is, held by the Honourable Apex Court that the benefit of interpretation in such circumstances must favour a person who is likely to suffer an irreparable harm and serious prejudice. If a letter or notice is sent by RPAD to the addressee on his correct address, the service is presumed to be effected. In the case in hand, there is no dispute that the District Collector has received the resignation on 1st November, 2017. The communication of an acceptance is complete when the communication is put in the course of transmission to the addressee so as to be out of the power of the sender. The Petitioner has posted the resignation letter duly signed by RPAD on 13th October, 2017 addressed to the District Collector. Once the letter is put in the envelope and is dispatched by RPAD, it is not within the control of the Petitioner as to when it would be delivered to the Collector.

Unless mischief is established as against the Petitioner, the conduct of the Petitioner needs to be scrutinized within the ambit of the provisions applicable. When the Petitioner has discharged her obligation by sending her resignation as a member of the Gram Panchayat within two days from the official declaration of the result, the provisions need to be interpreted in a manner so as to avoid the unseating of a democratically elected candidate.

As neither Section 13-A nor Rule 41-A mentions that, the resignation should be delivered to the authorized officer within seven days, it needs to be interpreted that, the legislature intended that the elected candidate should perform his obligation of resigning within seven days. On account of the postal delay, the Petitioner cannot be blamed so as to dislodge her from the elected position of a Sarpanch. Writ Petition is allowed. The impugned order passed by the District Collector, is quashed and set aside. The Petitioner shall be deemed to have retained her position as a Sarpanch of the said Village Gram Panchayat.

Tags : Resignation Delivery Post Removal

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High Court of Delhi

Ramvati Vs. Sukhbir Singh Chauhan and Ors.

MANU/DE/2317/2018

04.07.2018

Civil

Once Court has refused to entertain review petition and same is dismissed, there is no question of any merger and aggrieved person has to challenge main order and not order dismissing review petition

Present petition under Article 227 of the Constitution of India impugns the order of the Court of the Civil Judge dismissing application filed by the Petitioner/Plaintiff under Order XL VII Rule 1 of the Code of Civil Procedure, 1908 (CPC) for review of the order dated 23rd January, 2016 in the suit.

The Petitioner/Plaintiff, acting through her Special Power of Attorney Holder instituted the suit from which present petition arises (i) for declaration that, the Will dated 6th May, 1986 and other documents (if any) executed by the Respondents/Defendants no. 1 and 2 viz. Sukhbir Singh Chauhan and Balkishan in favour of Respondents/Defendants no. 3 and 4 viz. Naresh Kumar and L.G. Real Estate L.L.P. on the basis of the said Will qua agricultural land in Revenue Estate of village Bakoli, Delhi are null and void as the same are forged and fabricated, obtained by playing a fraud upon the petitioner/plaintiff, and, (ii) for permanent injunction restraining the Respondents/Defendants from disturbing the possession of the Petitioner/Plaintiff of the said agricultural land.

In view of the philosophy behind Order XLVII Rule 7 of the CPC prohibiting an appeal against an order rejecting an application for review, High Court is of the view that, no petition under Article 227 of the Constitution of India also should lie against such an order. After all, a remedy is always available to a party against the order of which review is sought and the error, even if any in the order of which review is sought, can always be corrected in such appeal.

The Supreme Court in Municipal Corporation of Delhi Vs. Yashwant Singh Negi held that, once the Court has refused to entertain the review petition and the same is dismissed, there is no question of any merger and the aggrieved person has to challenge the main order and not the order dismissing the review petition because to the dismissal of the review petition the principle of merger does not apply. Reference was made to DSR Steel (Private) Limited Vs. State of Rajasthan laying down that, when the review petition is dismissed, the order of which review was sought, suffers neither any reversal nor an alteration or modification and anyone aggrieved by the order of which review was sought shall have to challenge the same and not the order dismissing the review petition. Applying the said principles, the SLP preferred against the order of dismissal of review petition, without challenging the order of which review was sought, was held to be not maintainable and was dismissed.

Even if a petition under Article 227 of the Constitution of India was held to be maintainable, it would be maintainable on the well recognized grounds, of the Court having exercised jurisdiction which did not vest in it or having exercised jurisdiction with material irregularity and which is not found to be the case. It is not as if the learned Civil Judge has refused to exercise the jurisdiction vested in her of review or has exercised the same with material irregularity. The view taken by the learned ADJ, of there being no error within the meaning of Order XL VII Rule 1 of the CPC in the order of which review was sought, is a well reasoned view in accordance with law. There is thus no merit in the petition which is dismissed.

Relevant

Municipal Corporation of Delhi Vs. Yashwant Singh Negi MANU/SC/0338/2014
, DSR Steel (Private) Limited Vs. State of Rajasthan MANU/SC/0350/2012

Tags : Review Maintainability Material irregularity

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