Supreme Court

Chilakamarthi Venkateswarlu and Ors. Vs. State of Andhra Pradesh and Ors.

MANU/SC/1008/2019

31.07.2019

Criminal

If basic ingredients of offence alleged are altogether absent, it is open to High Court to quash criminal proceedings

Present appeal is against a judgment passed by the High Court dismissing Criminal Petition filed by the Appellant under Section 482 of the Code of Criminal Procedure (CrPC) to quash the criminal proceedings pending against the Appellants for offences punishable under Sections 307, 323, 427, 447 and 506(2) read with Section 34 of the Indian Penal Code (IPC). It is the case of the Appellants that, the de facto complainant has falsely implicated the Appellants as a counter blast to the Criminal Complaint filed by the Appellant No. 2.

For interference under Section 482, three conditions are to be fulfilled. The injustice which comes to light should be of a grave, and not of a trivial character; it should be palpable and clear and not doubtful and there should exist no other provision of law by which the party aggrieved could have sought relief.

In exercising jurisdiction under Section 482, it is not permissible for the Court to act as if it were a trial Court. The Court is only to be prima facie satisfied about existence of sufficient ground for proceeding against the Accused. For that limited purpose, the Court can evaluate materials and documents on record, but it cannot appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the Accused.

The High Court should not, in exercise of jurisdiction under Section 482, embark upon an enquiry into whether the evidence is reliable or not, or whether on a reasonable appreciation of the evidence the allegations are not sustainable, for this is the function of the trial Judge. The power under Section 482 of CrPC should not be exercised to stifle legitimate prosecution. At the same time, if the basic ingredients of the offence alleged are altogether absent, the criminal proceedings may be quashed under Section 482 of CrPC.

It is well settled that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is open to the High Court, exercising its inherent jurisdiction under Section 482 of the CrPC, to quash the order passed by the Magistrate taking cognizance of the offence. The inherent power under Section 482 is intended to prevent the abuse of the process of the Court and to secure the ends of justice. Such power cannot be exercised to do something which is expressly barred under the CrPC.

In present case, the High Court rightly refused to quash the criminal complaint, observing that it can exercise power under Section 482 of the CrPC only in rare cases. The power to quash the proceedings is generally exercised, when there is no material to proceed against the Petitioners even if the allegations in the complaint are prima facie accepted as true. The High Court in effect found, and rightly, that the allegations in the complaint coupled with the statements recorded by the learned Magistrate had the necessary ingredients of offences under Sections 307, 323, 427, 447 and 506(2) read with Section 34 of the IPC. Present is not a fit case to quash the criminal proceedings. The appeal is, accordingly, dismissed.

Tags : Proceedings Quashing of Jurisdiction

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Supreme Court

Maharashtra Chess Association Vs. Union of India (UOI) and Ors.

MANU/SC/0992/2019

29.07.2019

Civil

Mere existence of alternate forums does not create a legal bar on a High Court to exercise its writ jurisdiction

In present matter, the second Respondent, the All India Chess Federation is a society registered under the Societies Registration Act, 1860. It is a central governing authority for chess in India. The Appellant is a society registered under the Act of 1860 and was an affiliated member of the second Respondent since 1978. On 25 December 2016, the Central Council of the second Respondent passed a resolution to disaffiliate the Appellant. After the institution of the writ proceedings, the third Respondent has been affiliated by the second Respondent in place of the Appellant.

The Appellant had filed a writ petition before the Bombay High Court under Article 226 of the Constitution impleading, the second Respondent. The second Respondent raised a preliminary objection that, the Bombay High Court did not have jurisdiction to entertain the writ petition on the ground that, Clause 21 of the Constitution and Bye Laws conferred exclusive jurisdiction on Courts at Chennai in disputes involving the second Respondent and any other party to the Constitution and Bye Laws, including the Appellant. The question raised in present case is whether Clause 21 itself creates a legal bar on the Bombay High Court exercising its writ jurisdiction

It is a well settled principle of contract law that, parties cannot by contract exclude the jurisdiction of all courts. Such a contract would constitute an agreement in restraint of legal proceedings and contravene Section 28 of the Indian Contract Act, 1872. However, where parties to a contract confer jurisdiction on one amongst multiple courts having proper jurisdiction, to the exclusion of all other courts, the parties cannot be said to have ousted the jurisdiction of all courts. Such a contract is valid and will bind the parties to a civil action.

The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court's writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or not to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case.

The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of granting adequate relief to the Appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter.

The writ jurisdiction of the High Court is fundamentally discretionary. Even the existence of an alternate adequate remedy is merely an additional factor to be taken into consideration by the High Court in deciding whether or not to exercise its writ jurisdiction. This is in marked contradistinction to the jurisdiction of a civil court which is governed by statute. In exercising its discretion to entertain a particular case under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the Petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation.

In the present case, the Bombay High Court has relied solely on Clause 21 of the Constitution and Bye Laws to hold that its own writ jurisdiction is ousted. The Bombay High Court has failed to examine the case holistically and make a considered determination as to whether or not it should, in its discretion, exercise its powers under Article 226. The scrutiny to be applied to every writ petition under Article 226 by the High Court is a crucial safeguard of the Rule of law under the Constitution in the relevant territorial jurisdiction. It is not open to a High Court to abdicate this responsibility merely due to the existence of a privately negotiated document ousting its jurisdiction.

It is certainly open to the High Court to take into consideration the fact that, the Appellant and the second Respondent consented to resolve all their legal disputes before the courts at Chennai. However, this can be a factor within the broader factual matrix of the case. It is not for this Court to interfere in the discretion of the High Court in determining when to engage its writ jurisdiction unless exercised arbitrarily or erroneously. The sole and absolute reliance by the Bombay High Court on Clause 21 of the Constitution and Bye Laws to determine that its jurisdiction under Article 226 is ousted is however one such instance. The impugned judgment of the High Court set aside. Writ petition is accordingly restored to the file of the High Court for being considered afresh.

Tags : Legal bar Clause Jurisdiction

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Competition Commission of India

Indian Chemical Council Vs. General Insurance Corporation of India

MANU/CO/0029/2019

26.07.2019

MRTP/ Competition Laws

General insurance companies have freedom to decide their premium rates as well as their re-insurer

The present information has been filed by Indian Chemical Council ("Informant"), under Section 19(1)(a) of the Competition Act, 2002 against General Insurance Corporation of India ("GIC") alleging contravention of the provisions of Section 4 of the Act. The main grievance of the Informant revolves around a Circular dated 12th February, 2019 ("Circular"), issued by the GIC to all its ceding insurance companies with whom it has entered into reinsurance treaties, notifying certain amendments to the method of calculating premium that the ceding insurance companies need to comply with, within the fire insurance segment.

The Informant has prayed that, GIC be directed to withdraw the Circular dated 12th February, 2019, issued by it, to its ceding insurance companies under their respective treaties. The Informant has also filed an application under Section 33 of the Act praying that, GIC be restrained from implementing the Circular against the ceding insurance companies under its reinsurance treaties.

IRDAI being the sectoral regulator, upon reference by the Commission, has given its opinion that, the Circular, dated 12th February, 2019, of GIC is not in breach of relevant regulations and guidelines issued by it. The said Circular cannot be said to be anti-competitive, merely because it leads to enhancement in premium. It may not be appropriate on the part of the Commission to delve into aspects relating to quantification of premium and deciding whether any enhancement thereof is unjustifiable, since a pure pricing decision cannot be said to give rise to any competition concern unless, it is a manifestation of abuse of dominant position.

The Commission further notes that, the said circular, neither prevents a general insurance company/insurer to offer premium at lower rates to a primary insured/policy holder nor does it prevent general insurance company from opting for an alternate reinsurance company, other than GIC. Therefore, general insurance companies have the freedom to decide their premium rates as well as their reinsurer, irrespective of the said circular.

The Commission does not find alleged contravention of the provisions of Section 4 of the Act against GIC. The Commission is of the opinion that there exists no prima facie case and the information filed is closed under Section 26(2) of the Act. Consequently, no case arises for consideration of interim relief claimed by the Informant under Section 33 of the Act.

Tags : Circular Premium Enhancement Legality

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High Court of Calcutta

Kanuram Naskar Vs. The State of West Bengal and Ors.

MANU/WB/1797/2019

25.07.2019

Service

Appointment on compassionate ground cannot be granted, if criterion for showing compassion is missing

The prayer of the Petitioner for being appointed on compassionate ground has been rejected by a communication. The same is impugned in the instant writ petition. The grounds for rejection of the petitioner's prayer have been specifically mentioned in the order of rejection. It was mentioned that (i) due to the increasing trend of huge revenue loss year over year because of decreasing consumption of coal gas by the consumers; (ii) increasing trend of expenditure for running the establishment; and (iii) gradual decrease of area of operation because of various reasons and all such factors contributing to non-requirement of additional manpower in Group-C and D categories. The Respondent Corporation has taken a decision that there was no scope to consider the prayer of the petitioner.

The order rejecting the prayer for compassionate appointment appears to be a perfectly reasoned one. The Corporation has assessed the requirement of man power, running expenditure etc. and arrived at a specific finding that there was no requirement of additional staff. In the absence of any cogent ground made out in the writ petition to assail the said findings of facts the reasons for rejecting the prayer of the petitioner cannot be faulted.

That apart, the order was passed on 16th July, 2015 and the Petitioner has challenged the same in the year 2019. No reason whatsoever has been mentioned in the writ petition for filing the writ petition at such a belated stage.

Prayer for appointment on compassionate ground is considered on urgent basis as the same is meant to tide over the sudden crisis faced by the family of an employee on the untimely death of the bread earner. In the instant case, the employee concerned expired in the year 2007. In the year 2019, there is hardly any scope or reason to show compassion. The immediate crisis which was faced by the petitioner in the year 2007 no longer subsists in the year 2019.

It is settled law that, appointment on compassionate ground is not a matter of right and the same is not a mode a regular employment. It is a concession and compassion that is shown to the family of the employee who died in harness. The criterion for showing compassion is palpably missing in the instant case. No relief can be granted to the Petitioner in the instant case.

Tags : Compassionate appointment Rejection Legality

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Customs, Excise and Service Tax Appellate Tribunal

Sree Ayyanar Spinning & Weaving Mills Ltd. Vs. The Commissioner of Customs

MANU/CC/0185/2019

25.07.2019

Customs

Unless it is proved that, person to be penalized has intentionally implicated himself in use of false and incorrect materials, there can be no justification for penalty

The only issue involved in the present appeal by the Assessee is the levy of penalty under Section 114AA of the Customs Act, 1962. The Appellant preferred appeal against the levy of penalty under Section 114AA of Act, before the First Appellate Authority and the First Appellate Authority vide impugned Order-in-Appeal upheld the levy of penalty thereby rejecting the claim of the Appellant.

The main contention is that, the Appellant had no role in so far as quality of the imported cotton was concerned. He further contended that, the imposition of penalty was not automatic since there was no finding by the authorities below as to the satisfaction of the conditions prescribed under Section 114AA of Act, by the Assessee.

The essence of Section 114AA of Act, is that the "person knowingly and intentionally makes, signs or uses" is as good as suppression or playing fraud and hence, the burden of proof is heavily cast on the Revenue to establish the mala fides. The allegation of Fake PSC ipso facto does not lead to the liability under this Section. The words "knowingly" and "intentionally" touches upon the culpability of the mindset ab initio and consequently, it is for the Revenue to discharge its burden of establishing that, the imported consignment was forbidden or that the Appellant was well aware of the fact that the cotton it ordered was forbidden or was not fit for home consumption. It is a matter of record that, only after the preliminary tests, when the consignment reached India, did everyone realize that it was unfit for home consumption.

The impugned penalty is for an express default and when the report itself has a clean slate, there cannot be any penalty, at least with respect to that report. This is also for the reason that, the Commissioner (Appeals) has, in her first order, set aside the entire issue for passing fresh adjudication order in the light of the second report. The natural corollary is that, the first report becomes non-est. Hence, there is no basis for imposition nor has the Revenue brought out any raison d'etre for imposition of the impugned penalty on record since the very basis i.e., the alleged fake report is itself not there on board anymore.

The Adjudicating Authority has been injudicious and peremptory in imposition of the impugned penalty under Section 114AA of Act, since, unless it is proved that the person to be penalized has knowingly or intentionally implicated himself in use of false and incorrect materials, there can be no justification for penalty under this Section. This requirement of factual finding itself is not there and nor has it been answered satisfactorily either in the Show Cause Notice or in the orders of the lower authorities. The impugned order is set aside, the appeal is allowed and the penalty is ordered to be deleted.

Tags : Penalty Imposition Validity

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High Court of Chhattisgarh

Aghan Singh Vs. State of Chhattisgarh

MANU/CG/0509/2019

23.07.2019

Civil

Validity of order cannot be determined by the parties and for setting aside such order, even if void, party has to approach appropriate forum

The Plaintiff filed a suit for declaration of title and permanent injunction stating that, patta was granted in his favour by the Naib-Tahsildar, Kanker on 13th August, 1996, which was illegally revoked by the Sub-Divisional Officer suo moto by order dated 28th July, 98 in exercise of powers under Section 51 of the Madhya Pradesh Land Revenue Code, 1959. On appeal being preferred by the Plaintiff against the order of the SDO, the Collector, dismissed the same finding no merit.

Defendant No. 1 filed its written statement stating that, the Plaintiff has illegally encroached upon the suit land and patta granted to him has rightly been revoked by the Sub-Divisional Officer and order of the SDO has been affirmed by the Collector, Kanker.

The substantial question of law involved in present Plaintiff's second appeal is whether the findings of both the Courts below that, the Patta in favour of the Plaintiff of the suit land was not illegally cancelled, is justified in view of the fact that the same was passed without following the procedure prescribed under Section 51 of the Land Revenue Code and without affording an opportunity of hearing to the Plaintiff.

The Appellant/Plaintiff, would submit that, the order revoking patta granted to the Plaintiff by the Sub-Divisional Officer was clearly in breach of principle of natural justice and both the Courts below are absolutely unjustified in dismissing the suit of the Plaintiff.

It is well settled law that, even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact, be effective inter parties until it is successfully avoided or challenged in a higher forum.

The Supreme Court following the principle of law laid down in M.K. Kunhikannan Nambiar's case, in the matter of Krishnadevi Malchand Kamathia and others v. Bombay Environmental Action Group and others again held that, whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum.

Similarly, in the matter of Shyam Sundar Sarma v. Pannalal Jaiswal and others, a three-Judge Bench of the Supreme Court has clearly held that, an appeal which is dismissed for default or as barred by limitation is nevertheless an appeal in the eye of the law for all purposes and a decision in the appeal and the same cannot be treated on par with non-filing of an appeal or withdrawal of appeal.

In the facts of the present case, it is quite vivid that, the Plaintiff being party to the order of the Collector ought to have sought declaration/cancellation of that order, but he did not seek declaration/cancellation of that order. The Plaintiff's suit as framed and filed was simply for declaration of title and permanent injunction and without seeking declaration/cancellation of order of the Collector, it was not maintainable. Both the Courts below are absolutely justified in dismissing the suit. The concurrent finding recorded by two Courts below is the finding of fact based on evidence available on record. The substantial question of law is answered in favour of the Defendant and against the Plaintiff. Accordingly, the second appeal is dismissed.

Relevant

State of Kerala vs. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and others MANU/SC/0240/1996
; Krishnadevi Malchand Kamathia and Ors. vs. Bombay Environmental Action Group and Ors. MANU/SC/0085/2011

Tags : Patta Cancellation Legality

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