High Court of Himachal Pradesh

Rahul Vs. State of Himachal Pradesh and Ors.

MANU/HP/1202/2018

27.08.2018

Criminal

Code of Criminal Procedure does not provide for reinvestigation. In a rare case, re-investigation can be ordered to meet ends of justice

The present petition is maintained by the Petitioner under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) for re-investigation in the FIR under Sections 341, 323 and 506 of the Indian Penal Code, 1860 (IPC) as well FIR under Section 325 of the IPC, both registered at Police Station, and also for quashing the investigation in the aforesaid FIRs. Learned Counsel appearing on behalf of the Petitioner has argued that, the investigation in this case is not conducted in a fair manner and the investigation so carried out to benefit to the Respondents. He has argued that, the investigation was conducted by same Investigating Officer, but with different results.

From the perusal of record, it is clear that the recovery of 'khukhri' i.e. dragger was also effected from Up-Pradhan, who has collected the same from the place, where the quarrel had taken place. CrPC does not provide for re-investigation. However, in a rare case, the reinvestigation can be ordered to meet the ends of justice.

In the present case, presence of the Petitioner is there at the time of incidence, as there was cross FIR's. The injuries were simple in nature on the person of Petitioner and grievous on the person of other party was found and consequently, cross FIRs were registered. Present Court thus concludes that there exists no ground to reinvestigate in the matter. The fact, as alleged by the Petitioner that one of the Respondent is working in the Vigilance Department, as Head Constable, is also considered, but after going through the record available, present Court comes to the conclusion that it cannot be said that he has influenced the investigation in any manner. Petition dismissed.

Tags : FIR Re-investigation Quashing of

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Supreme Court

Anurag Mittal Vs. Shaily Mishra Mittal

MANU/SC/0903/2018

24.08.2018

Family

Restriction placed on a second marriage would not apply to a case where parties have settled and decided not to pursue the appeal

By present appeal, Appellant is impugning the judgment of High Court set aside the judgment of the Family Court and allowed the appeal of the Respondent and declared the marriage between the Appellant and the Respondent held on 06.12.2011 as null and void. The High Court was of the opinion that any marriage solemnized by a party during the pendency of the appeal wherein the operation of the decree of divorce was stayed, would be in contravention of Section 5 (i) of the Hindu Marriage Act, 1955. Issue involved in present matter is whether the dismissal of the appeal relates back to the date of filing of the application for withdrawal and that Whether the marriage dated 6th December, 2011 between the Appellant and the Respondent during the pendency of the appeal against the decree of divorce is void.

Order XXIII Rule 1(1) of the Code of Civil Procedure, 1908 (CPC) gives an absolute right to the Plaintiff to withdraw his suit or abandon any part of his claim. There is no doubt that, Order XXIII Rule 1 of the CPC is applicable to appeals as well and the Appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it. Therefore, the appeal is deemed to have been withdrawn on 28th November, 2011 i.e. the date of the filing of the application for withdrawal. On 06th December, 2011 which is the date of the marriage between the Appellant and the Respondent, Rachna Aggarwal cannot be considered as a living spouse. Hence, Section 5 (i) of Act is not attracted and the marriage between the Appellant and the Respondent cannot be declared as void.

Section 15 of the Act provides that, it shall be lawful for either party to marry again after dissolution of a marriage, if there is no right of appeal against the decree. A second marriage by either party shall be lawful only after dismissal of an appeal against the decree of divorce, if filed. If there is no right of appeal, the decree of divorce remains final and either party to the marriage is free to marry again. In case an appeal is presented, any marriage before dismissal of the appeal shall not be lawful. The object of the provision is to provide protection to the person who has filed an appeal against the decree of dissolution of marriage and to ensure that the said appeal is not frustrated. The purpose of Section 15 of the Act is to avert complications that would arise due to a second marriage during the pendency of the appeal, in case the decree of dissolution of marriage is reversed. The protection that is afforded by Section 15 is primarily to a person who is contesting the decree of divorce.

Aggrieved by the decree of divorce, the Appellant filed an appeal and obtained a stay of the decree. During the pendency of the appeal, there was a settlement between him and his former spouse. After entering into a settlement, he did not intend to contest the decree of divorce. His intention was made clear by filing of the application for withdrawal. It cannot be said that, he has to wait till a formal order is passed in the appeal, or otherwise his marriage dated 6th December, 2011 shall be unlawful. Restriction placed on a second marriage in Section 15 of the Act till the dismissal of an appeal would not apply to a case where parties have settled and decided not to pursue the appeal.

The conclusion of the High Court that, the marriage dated 6th December, 2011 is void is erroneous. Hence, the judgment of the High Court is set aside. Accordingly, the Appeal is allowed.

Tags : Second Marriage Restriction Pendency Appeal

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High Court of Delhi

Fresh & Healthy Enterprises Ltd. Vs. R. K. Brothers

MANU/DE/3074/2018

24.08.2018

Limitation

When suit is filed on basis of an open, mutual and current account, limitation commences at end of financial year for which the transactions are entered into

Present Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the Plaintiff in the suit impugning the Judgment of the Trial Court by which the trial court has dismissed the suit as barred by time. The suit has been dismissed at the initial stage even before filing of the written statement by the Respondent/Defendant. The suit was dismissed because the Respondent/Defendant had filed an application under Section 3 of the Limitation Act, 1963 for dismissing the suit as time-barred.

The subject suit was a suit for recovery of monies filed by the Appellant/Plaintiff. Appellant/plaintiff by the suit has claimed an amount of Rs. 26,63,856. Monies were claimed on account of supply/sale and purchase of Apples by the Appellant/Plaintiff to the Respondent/Defendant.

The Trial Court has committed a gross illegality in dismissing the suit as time barred without even adverting to the fact that, the suit is based on a statement of account. A suit plaint does not have to contain a statement of law that the ledger account was an open, mutual and current account under Article 1 of the Limitation Act, 1963 because that is an inference or a finding of fact which has to be arrived at from the statement of account which is filed. The statement of account which is filed with respect to transactions entered into, it is seen that within the first few transactions itself there are shifting balances. Once there are shifting balances, the suit will be on the basis of an open, mutual and current account.

As per Article 1 of the Act, a suit filed on the basis of an open, mutual and current account, limitation commences at the end of the financial year for which the transactions are entered into. The transactions entered into show that the last invoice entered into the ledger account maintained by the appellant/plaintiff of the respondent/defendant is dated 14th May, 2013. Limitation therefore will commence as per Article 1 of the Act on 1st April, 2014. The suit has been filed on 26th July, 2016 i.e. within three years of commencing of limitation on 1st April, 2014, and therefore, the suit was clearly within limitation.

The meaning of an open, mutual and current account has been dealt with by the Supreme Court in the judgments in the cases of Hindustan Forest Company Vs. Lal Chand & Others, and Kesharichand Jaisukhlal Vs. Shillong Banking Corporation, and the law is that shifting balances will create an open, mutual and current account.

The defence taken by the Respondent/Defendant of the suit being barred by time was a completely frivolous defence, and that too without filing of a written statement. Trial Court has committed a complete illegality in allowing the application under Section 3 of the Act filed by the Respondent/Defendant. The impugned order/judgment of the Trial Court is therefore set aside with costs of Rs. 25,000 payable by the Respondent/Defendant to the Appellant/Plaintiff, and which payment of costs shall be a condition precedent for the respondent/defendant to contest the suit in the Trial Court.

Relevant

The Hindustan Forest Company Vs. Lal Chand & Others, MANU/SC/0147/1959
and Kesharichand Jaisukhlal Vs. The Shillong Banking Corporation MANU/SC/0351/1965

Tags : Suit Time barred Validity

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High Court of Himachal Pradesh

Court on its Own Motion Vs. Vikas Sanoria

MANU/HP/1199/2018

24.08.2018

Contempt of Court

An apology for criminal contempt of Court must be offered at the earliest, since a belated apology hardly shows the "contrition which is essence of purging of contempt"

Present Court after noticing that, the Respondent had made certain scurrilous and indecent attacks against the Judicial Magistrate initiated suo motu criminal contempt proceedings. The Respondent, who happens to be an Advocate, after putting in appearance in those proceedings thereafter had posted the comments on his face book account. Issue involved in present case is whether Respondent is liable to be convicted under Section 12 of the Contempt of Courts Act, 1971.

A lawyer is an officer of the Court and is expected to conduct himself in a manner that behooves his privileged position in the Court. Advocates are required to conduct themselves at all time as gentlemen; this conduct assumes greater significance in a court of law when he/she stands to assist the Court. It is expected that they would stand to augment the process of justice instead of acting in a manner which tends to obstruct the functioning of the Court and the administration of justice.

No doubt, fair comments, even if, outspoken, but made without any malice or attempting to impair the administration of justice and made in good faith, in proper language, do not attract any punishment for contempt of court. However, when from the criticism deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring down the administration of justice into disrepute, the courts must bestir themselves to uphold the dignity and the majesty of law. No system of justice can tolerate such unbridled licence on the part of a person to permit himself the liberty or scandalizing a court by casting unwarranted, uncalled for an unjustified aspersions on the integrity, ability, impartiality or fairness of a Judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice.

An apology for criminal contempt of court must be offered at the earliest since a belated apology hardly shows the "contrition which is the essence of the purging of contempt". Evidently, in present case, the Respondent even after this Court had issued notice, relentlessly continued to post the adverse comments not only against the Judicial Magistrate, District Judge, Shimla but even also this Court or rather contemptuous comments on its facebook account. Being a member of the bar, it was the duty of the Respondent not to demean and disgrace the majesty of justice. There was no occasion for the Respondent to have attributed insinuation and cast bald and unsubstantiated allegations against the judges that too right across the board i.e. Judicial Magistrate, District and Sessions Judge, Shimla and this Court. Such an act especially by member of Bar who is another cog in the wheel of justice is highly reprehensible and deeply regretted.

It is clearly evident that, the Respondent has indulged himself in scandalizing the Court and his act amounts to interference with the due course of judicial proceedings, apart from scandalizing and lowering the dignity of this Court. The charges framed against the Respondent stand duly proved. Accordingly, the Respondent is convicted under Section 12 of the Act.

The Respondent is sentenced to simple imprisonment for one month and to pay a fine of Rs. 10,000. In addition thereto, the Respondent is directed to purge the contempt by deleting his face book account and at the same time, the Registrar General of this Registry is directed to take up the matter with regard to deletion of the face book account of the respondent with the concerned Agency and ensure that the same is deleted by the concerned Agency.

Tags : Notice Contempt Penalty

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High Court of Uttarakhand

Anil Kumar Gupta Vs. State of Uttarakhand and Ors.

MANU/UC/0614/2018

24.08.2018

Civil

No person has a right to encroach upon the Government land; temples cannot be permitted to come on busy roads and public lands

Present petition has been filed pro bono publico to highlight the unauthorized encroachments made on the footpaths and roads at Rishikesh leading to acute traffic jams throughout the towns of Uttarakhand. The Petitioner has also highlighted the unauthorized constructions and encroachments made on the public land by the religious bodies including the pollution of river Ganga and financial irregularities in the Nagar Palika Parishad, Rishikesh. The Petitioner has also highlighted that the respondents have not demolished Sai Mandir constructed on the public road, though the appeal was dismissed under Section 27 of the Uttar Pradesh Urban Planning and Development Act, 1973.

The Petitioner has placed on record sufficient material to prove that, the Respondents are remiss in discharge of their statutory duties by permitting the citizens to raise unauthorized constructions/encroachments over the public paths, public roads including by the temples. The Petitioner has also placed on record the photographs, depicting therein, that the temples have been built on the public land, that too on busy roads. The large scale encroachment/construction could not be carried out without the connivance of the authorities.

No person has a right to encroach upon the Government land. The temples cannot be permitted to come on busy roads and public lands. A stern action is required to be taken, the moment unauthorized construction is commenced. The Authority concerned looks other way when people start encroaching upon the Government land. It is the duty cast upon the authorities to ensure that no encroachment is made on the public land, forest land and public streets. The ordinary citizens living in Rishikesh town are put to lot of inconvenience due to regular traffic jams in the entire town due to encroachments made on the public roads. The Nagar Palika Parishad has also constructed toilet without permission.

The construction activities in Rishikesh are governed by the Master Plan enforced by the Haridwar Development Authority. The construction can only be raised as per the Master Plan and the byelaws framed by the Nagar Palika Parishad. Any person, who has raised construction, even religious bodies, in violation of the master plan and in breach of bye-laws, is required to be dealt with sternly.

Respondents are directed to remove the unauthorized constructions/encroachments from the public land and the pavements in the Rishikesh Town. Respondent is directed to seal the commercial buildings/property constructed in the residential area against the master plan and building byelaws of the Haridwar Development Authority.

Tags : Encroachments Public land Removal

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Customs, Excise and Service Tax Appellate Tribunal

Paragon Extrusions P. Ltd. Vs. Commissioner, CGST, Ghaziabad

MANU/CN/0100/2018

24.08.2018

Excise

Clandestine removal allegations cannot be upheld on basis of sole statement of one of employees, unless same are corroborated by other independent evidences

The Appellant's factory is engaged in the manufacture of Aluminium Profiles (hollow) of various sizes and specifications, was visited by the Central Excise Officers, who conducted various checks and verifications. It was found that, Daily Stock Register (RG-1) was written only up to 30th April, 2015. Proceedings were initiated against the Appellant proposing confirmation of demand of duty alleging clandestine removal, which in turn was based upon entries made in the note book as also on rough papers. The said show cause notice was taken up for adjudication by the Additional Commissioner. Additional Commissioner in his order has vacated the show cause notice by observing that apart from the statement of an employee, there is no other corroborative evidences on record to establish clandestine manufacture and removal of the goods.

Being aggrieved with the said order of the Original Adjudicating Authority, Revenue filed an appeal before Commissioner (Appeals). The appellate authority set aside the Order of the Original Adjudicating Authority and confirmed the demand and imposed penalty on the Appellants under Rule 25(1) of the Central Excise Rules, 2002 read with Section 11(AC) of the Central Excise Act, 1944. The said order of Commissioner (Appeals) is impugned before Tribunal.

Commissioner (Appeals) has strongly relied upon the statement of said deponent by observing that, he has accepted the clandestine removal. Further, as recorded in the order of the Original Adjudicating Authority as also as pleaded by the Appellant, the said statement cannot be held to be confessional as it is clearly deposed by Jagdish Prasad that, details in writing pad and slip pad etc. appears to be in the handwriting of dispatch and packing staff. Revenue has made no further efforts to get in touch with the said dispatch and packing staff or to find out who actually is the writer of the entries in the note pad. No enquiry stand made even from the Directors or from any other person/staff of the assessee. The entire case of the Revenue is based upon the not so confessional statement of Jagdish Prasad.

Apart from the fact that the statement of Shri Jagdish Prasad was not confessional, Tribunal observed that even if the said statement is held to be confessional statement accepting clandestine removals, the same cannot be made the sole basis for upholding the allegations of clandestine activity of the appellant. The deponent of the said statement was never put to Examination-in-Chief or cross examination and as such veracity of his statement has never been tested. Clandestine removal allegations cannot be upheld on the basis of the sole statement of one of the employees, unless the same are corroborated by other independent evidences.

The Revenue has failed to produce any evidence to establish clandestine removal on the part of the Appellant. The Order of Commissioner (Appeals) lacks merits and is accordingly set aside and the order of the Original Adjudicating Authority is restored.

Similarly in respect of the shortages, it is well settled that mere shortages cannot lead to the allegation of clandestine removal in the absence of any other evidences to reflect upon the fact that such shortages has occurred on account of clandestine clearances. Appeal is allowed by restoring the Order of the Original Adjudicating Authority.

Tags : Demand Penalty Legality

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