Judgments
High Court of Punjab and Haryana
Paramjit Singh and Ors. Vs. State of Punjab
MANU/PH/0537/2019
23.05.2019
Criminal
Existence of right of private defence can be established based on preponderance of probabilities and said right has to be widely interpreted
In present case, FIR came to be registered under Sections 307, 326, 323, 324, 452, 429, 506, 148 and 149 of Indian Penal Code, 1860 (IPC) and Sections 25, 27 of the Arms act, 1959. A total of seven persons were named as accused, out of whom four were acquitted. The appeals have been filed by three persons.
Learned Sessions Judge also found on the basis of evidence on record that, the property on which the occurrence took place was infact in the possession of the accused persons on the date of the incident as possession thereof had been handed over to them in execution of a decree. Thus, all accused were acquitted of the charges under Sections 452, 148 and 149 of IPC. He, however, held that the accused persons had no right of private defence and, thus, convicted Bakshi Ram and Paramjit Singh under Section 308 of IPC and Section 27 of the Arms Act, 1959, Rajinder Kumar was convicted under Section 324 of IPC.
The Appellants submits that, the finding of the learned Sessions Judge that the Appellants did not possess the right of private defence is flawed and is based on failure to appreciate the evidence on record. The evidence on record and the circumstances of the case clearly establish that, the complainant party trespassed into the property of the accused persons and in exercise of right of private defence some injuries were caused to two persons.
The complainant side came to the place of occurrence in a group in the dead of night, even though they were unarmed. The only possible inference is that, they had come to take forcible possession. This act is covered by the definition of criminal trespass as given in Section 441 of IPC and in respect of the offence of criminal trespass, right of private defence is provided under Section 104 of IPC. It extends to causing any harm except death.
From the evidence of Doctor, it is also proved that the injuries caused were simple in nature and on non-vital parts of the body. It would, thus, be safe to hold that accused Bakshi Ram and Paramjit Singh used their .12 bore guns only to ward of the trespassers and not to cause death. The argument of learned State counsel that the right of private defence had been exceeded because fire arms were used against unarmed persons can not be accepted, keeping in view the time of the incident and number of persons present. According to the prosecution itself, five persons from the complainant side were present at the spot.
Moreover, according to the judgment of Satya Narain Yadav's case, existence of the right of private defence can be established based on preponderance of probabilities and the said right has to be widely interpreted. The place of dispute, time thereof and manner in which it took place, makes it extremely likely that the Appellants used their respective weapons with the aim of thwarting an attempt of forcible dispossession. Their action cannot be said to be in excess of their right of private defence keeping in view the state of injuries and their nature. The appeals are accordingly allowed; the impugned judgment of conviction and order of sentence, are set aside and the Appellants are acquitted of the charges, framed against them.
Tags : Private defence Charges Legality
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High Court of Karnataka
Vinod S. Salian Vs. The State of Karnataka and Ors.
MANU/KA/3179/2019
21.05.2019
Election
Dispute regarding election cannot be entertained by present Court in view of alternative and efficacious remedy available
The Petitioner has challenged the list of the nomination paper prepared by Respondent No. 5, whereby the candidature and nomination of the Petitioner has been rejected for the election scheduled to be held on 25th May, 2019 to the Respondent No. 9-Union.
The Petitioner would submit that, the Petitioner's nomination paper has been rejected, without assigning any valid and proper reason and also not providing any opportunity of hearing. Hence, alternative remedy available under Section 70 of the Karnataka Co-operative Societies Act, 1959 (Act) is no bar to invoke the writ jurisdiction under Articles 226 and 227 of the Constitution of India.
It is a well settled law that, no dispute regarding the election can be entertained by this Court, more particularly, in view of the alternative and efficacious remedy available under Section 70 of the Act. The provision contemplated that any dispute arising in connection with the election of a President, Vice-President or any office bearer or Member of board of the Society, shall be deemed to be the dispute touching the constitution, management, or the business of a Co-operative Society and such dispute shall be referred to the Registrar for decision who shall have the jurisdiction to entertain any suit or other proceedings in respect of such dispute.
In the present case, Section 70(2)(C) of the Act provides for adjudication of Election disputes by the Registrar of Co-operative Societies. Present Court in number of cases has already held that, the rejection of the nomination paper requires to be adjudicated under Section 70 of the Act and has relegated the Petitioner/s to avail the remedy available under Section 70 of the Act.
It is not in dispute that, the Hon'ble Apex Court in Bharati Reddy's case has held that, power of judicial review under Articles 226/227 of the Constitution of India is an essential feature, which neither be tinkered with nor eroded, even the Constitution cannot be amended to erode basic structure of Constitution. Therefore, it cannot be said that, the writ petition filed under Article 226 of the Constitution is not maintainable. However, it is left to the discretion of the Court exercising the power under Articles 226/227 to entertain the writ petition.
However, in view of the categorical finding of the Hon'ble Apex Court that, the Court exercising the power under Articles 226/227 of the Constitution has to exercise the discretion to entertain the writ petition, this Court is of the view that the rejection of the nomination paper based on the factual aspect requires to be considered by the Registrar in terms of Section 70 of the Act, the machinery provided for determination of dispute arising out of elections more particularly, the right to vote, contest or dispute election being a statutory right regulated by statutory provisions. Hence, the writ petition filed by the Petitioner by-passing the statutory remedy available under the Act cannot be entertained. Writ petition stands dismissed with liberty to the Petitioner to avail the remedy of settlement of disputes available under Section 70 of the Act, 1959, in accordance with law.
Relevant
Bharati Reddy vs. The State of Karnataka and Ors. MANU/SC/1034/2017
Tags : Nomination Rejection Alternative remedy
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National Consumer Disputes Redressal Commission
Ashok Kumar Taneja Vs. Orris Infrastructure Pvt. Ltd.
MANU/CF/0348/2019
21.05.2019
Consumer
Arbitration clause in Agreement does not bar jurisdiction of Consumer Fora to entertain Complaint
The brief facts in present case are that the Complainant, lured by the rosy representation of the officials of the Developer and the promise of possession within three years from the date of booking, booked an Apartment in the project 'Aster Court Premier' by paying a booking amount of 4,50,000 by cheque. On 18th May, 2012, an Allotment Letter was issued by the Developer. The Buyer's Agreement was executed between the parties on 4th June, 2012. It is stated that, the Complainant has paid 95% of the total sale consideration.
It is pleaded that, despite having paid 95% of the total sale consideration on time, and making several requests, the Developer has failed to deliver the possession to the Complainant till the date of filing of the present Complaint. It is averred that the project is far from completion.
The Complainant sought for refund of the money paid with interest as the Developer failed to deliver the possession within the stipulated time but there was no response. Vexed with the attitude of the Developer, the Complainant approached this Commission.
The Developer submits that, the Complainant is not a 'Consumer' and that he was in the business of buying and selling properties and was an 'Investor' is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates, in which this Commission has laid down the principle that the onus of establishing that the Complainant was dealing in real estate is on the Opposite Parties, which in the instant case they have failed to discharge or file any documentary evidence to prove their case that the Complainant is an 'Investor' and not a 'Consumer'. Therefore, the Complainants are 'Consumers' as defined under Section 2 (1)(d) of the Act.
Except for stating that there was shortage of water, which viewed from any angle, cannot be said to be a "Force Majeure Event", the Opposite Party has not filed any material on record to prove that the reasons were beyond their control.
Regarding objections raised by the learned counsel for the Developer that the clause of Arbitration bars this Commission from entertaining the Complaint. The Hon'ble Supreme Court in M/S Emaar MGF Land Limited vs Aftab Singh, has laid down the law that, the Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint.
As no material has been produced by the Opposite Party to prove that, the completion of construction and offer of possession has been delayed on account of reasons beyond theircontrol, there is no justification for the said delay.
In Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri, it was laid down that, after the promised date of delivery it is the discretion of the Complainant whether he/she wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest.
In the instant case also the Complainant cannot be made to wait indefinitely for possession of the unit, as the construction is yet to be completed even after a period of more than 7 years has lapsed from the date of Agreement. Therefore, Complainant is entitled for refund of the principal amount with reasonable interest.
In the instant case, admittedly the project is still not complete and therefore the question of 'electing' to seek refund cannot be a substantial ground to deny refund. The filing of the Complaint with this Consumer Forum itself can be construed to be an 'electing' to seek refund. Complaint is allowed in part directing the Opposite Party to refund the principal amount with interest @ 12% p.a. from the respective dates of deposit till the date of realization together with costs of 25,000 to the Complainant.
Relevant
Emmar MGF Land Ltd. & Ors. vs. Amit Puri MANU/CF/0317/2015
, Emaar MGF Land Limited vs. Aftab Singh MANU/SC/1458/2018
, Kavita Ahuja vs. Shipra Estates MANU/CF/0937/2015
Tags : Service Deficiency Refund Entitlement
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Customs, Excise and Service Tax Appellate Tribunal
Confidence Export Pvt. Ltd. and Ors. Vs. Commissioner of Central Excise, Raigad
MANU/CM/0151/2019
21.05.2019
Customs
Once duty has been demanded on finished goods cleared in DTA, no duty demand can be made on the raw material
The Appellant No. 1 is a 100% EOU engaged in the manufacture of Polyester Twisted Yarn (PTY). One of the raw materials used by the Appellant No. 1 to manufacture PTY is Partially Orient Yarn (POY). During the period November' 2001 to March' 2002, the Appellant No. 1 had cleared 17 consignments of PTY to the EOUs namely, Bluemoon Textiles (1 consignment), Maharashtra Weaving Works (4 consignments) and Sunrise Textiles (12 consignments), all are located in Malegaon.
The case of the Department is that, PTY covered by the above consignments did not reach the premises of EOUs and were diverted in DTA. Based on the investigation, the department had initiated show cause proceedings against the above EOUs, proposing for confirmation of duty demand on the PTY purchased from the Appellant No. 1. The notices issued to the said EOUs were adjudicated in confirming the proposed demand for duty saved on purchase of PTY from the Appellant No. 1. Appeal filed against the adjudication order was rejected by the Learned Commissioner (Appeals).
The Learned Advocate appearing for the Appellants submitted that, since the duty demand has been confirmed on the above referred EOUs under the proviso to Section 3 of the Central Excise Act, 1944 on the alleged ground that PTY were diverted in the DTA, no further duty demand can be fastened on the raw material imported or procured indigenously without payment of duty by the Appellant No. 1.
The Learned Advocate further submitted that as per Section 28 of the Customs Act, 1962, no demand can be made beyond the period of five years from the relevant date, even if the bond has been executed in terms of Notification No. 53/97-Cus., dated 3rd June, 1997.
The issue arising out of the present dispute stands settled by various orders of the Tribunal and affirmed by the Hon'ble Apex Court. In the case of Sarla Polysters Ltd., this Tribunal by following its earlier order in the case of Sanjari Twisters has held that, the demand on raw material cannot be sustained in view of duty demand being confirmed on the final products cleared clandestinely. In other words, once duty has been demanded on the finished goods cleared in DTA, no duty demand can be made on the raw material.
As regard confiscation of POY, the same is not liable for confiscation, since the conditions of the notification dated 3rd June, 1997 has not been contravened. Material available in the case record proves the fact that, the POY were used for the intended purpose and there was no contravention of post import condition. Even otherwise, the imported POY was not available for confiscation at the time of initiation of show cause proceedings, and as such, in view of the judgment of the Hon'ble Bombay High Court in the case of Finesse Creation Inc., no redemption fine can be imposed in the absence of goods being available for confiscation.
No duty can be demanded on the inputs as no violation has been brought out on record vis-à-vis raw material consumption in EOUs for the required purpose. Further, the impugned order imposing redemption fine and penalties on the appellants cannot also be sustained for judicial scrutiny. The impugned order is set aside and the Appeals are allowed.
Relevant
Sarla Polyester Ltd. vs. Commissioner of Central Excise MANU/CS/0445/2008
Tags : Demand Confirmation Legality
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High Court of Gauhati
National Insurance Co. Ltd. and Ors.Vs. Sikandar Ali and Ors.
MANU/GH/0380/2019
20.05.2019
Motor Vehicles
Security is to be furnished by insured owner prior to release of compensation amount by insurer
Present appeal is directed against the judgment passed by the Additional District & Sessions Judge cum Member, Motor Accident Claims Tribunal, (the Tribunal), whereby an amount of Rs. 1,97,481 has been awarded as compensation to the claimant/Respondent No. 1 alongwith the interest at the rate of 6% per annum from the date of filing of the claim/application for the injury sustained by him.
Limited ground taken in the appeal by the appellant/Insurance Company is that, no security before disbursement of the amount was insisted by the Tribunal from the owner of the vehicle (motorcycle)
The learned counsel for the Appellant submits that, although the Tribunal permitted the Appellant to recover the compensation from the owner of the motorcycle but there is no mentioned about the owner of the motorcycle requiring to deposit adequate security against the payment to be made by the Appellant in terms of the Apex Court decision in Oriental Insurance Co. LTD. Vs. Shri Nanjappan and Ors.
From the evidence of the claimant himself, there were three persons riding on the motorcycle when the accident and therefore, violation of the Insurance policy by the rider of the motorcycle is obvious and for which, the interest of the insurer will have to be protected. Protection given to the insurer in the case of Nanjappan and Ors. will have to be given to the Appellant herein as well.
As per Nanjappan and Ors., before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured.
The Apex Court has laid down in the manner in which, the security is to be furnished by the insured owner prior to the release of the compensation amount by the insurer. The same will have to be followed in the present case as well. The appeal is disposed of with a direction to the MACT, to comply with the direction issued in Nanjappan and Ors. before releasing the amount of compensation to the claimant.
Relevant
Oriental Insurance Co. LTD. Vs. Shri Nanjappan and Ors. MANU/SC/0122/2004
Tags : Compensation Security Furnishing of
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High Court of Madhya Pradesh
Govind Singh Rana Vs. The State of Madhya Pradesh
MANU/MP/0254/2019
16.05.2019
Criminal
If assailant acts with intention that such action might cause death, and hurt is caused, then provisions of Section 307 of IPC would be applicable
Present revision application has been filed by the applicants against the order, passed by learned Sessions Judge, framing the charges against the Applicants under Section 294, 323/34, 307/34 and 506-II of Indian Penal Code, 1860 (IPC). Learned counsel for the Applicants submits that, charge under Section 307/34 of IPC is absolutely groundless as there is no material against the applicants for the same.
According to Section 307 of IPC, whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
If the assailant acts with the intention or knowledge that such action might cause death, and hurt is caused, then the provisions of Section 307 of IPC would be applicable. There is no requirement for the injury to be on a "vital part" of the body, merely causing 'hurt' is sufficient to attract Section 307 of IPC.
In the present case, it is evident that as per prosecution case, the applicants have made common intention to cause injury and in furtherance of the common intention they have caused head injury on the vital part of body of the complainant. As per Doctor opinion, the injury is dangerous to life, so the knowledge of the accused that by causing such bodily injury on the head of the complainant, it may cause his death, cannot be ruled out because the intention is deduced from the act of the accused and other circumstances.
The trial Court did not err in framing the charge under Section 307 of IPC. The order of framing of charge under Section 307 of IPC by the trial Court is as per law. In this view of the matter, the impugned order regarding framing of charges is hereby affirmed. Consequently, the criminal revision filed by the Applicants stands dismissed.
Tags : Charges framing of Validity
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