Judgments
Supreme Court
Amir Hamza Shaikh and Ors. Vs. State of Maharashtra and Ors.
MANU/SC/1056/2019
07.08.2019
Criminal
Magistrate is within its jurisdiction to grant permission to victim to prosecute accused only on satisfaction of relevant facts
The challenge in the present appeal is to an order passed by the High Court whereby an order passed by the Magistrate declining permission to Respondent No. 2 to prosecute the Appellants-Accused for the offences punishable under Sections 498A, 406 read with Section 34 of Indian Penal Code, 1860, was allowed.
The Respondent No. 2 had sought permission to conduct prosecution in terms of Section 302 of the Code of Criminal Procedure, 1973 (CrPC) for the aforesaid offences. The learned Magistrate declined permission without giving any reason but the High Court considered the judgments on the subject and granted permission to conduct prosecution only for the reason that, the application has been made by an aggrieved party.
It may be noticed that, under Section 301 of the CrPC, the Public Prosecutor may appear and plead without any authority before any Court in which that case is under inquiry, trial or appeal and any person may instruct a pleader who shall act under the directions of the Public Prosecutor and may with the permission of the Court submit written submissions.
In J.K. International v. State, Govt of NCT of Delhi and Ors., it has been held that, if the cause of justice would be better served by granting such permission, the Magistrate's court would generally grant such permission. An aggrieved private person is not altogether eclipsed from the scenario, when the criminal court take cognizance of the offences based on the report submitted by the police.
In view of principles laid down, though the Magistrate is not bound to grant permission at the mere asking but the victim has a right to assist the Court in a trial before the Magistrate. The Magistrate may consider as to whether the victim is in a position to assist the Court and as to whether the trial does not involve such complexities which cannot be handled by the victim. On satisfaction of such facts, the Magistrate would be within its jurisdiction to grant of permission to the victim to take over the inquiry of the pendency before the Magistrate.
The High Court has granted permission to the complainant to prosecute the trial without examining the parameters laid down. Therefore, the order passed by the High Court and that of the Magistrate is set aside. The matter is remitted to the Magistrate to consider as to whether the complainant should be granted permission to prosecute the offences under Sections 498A, 406 read with Section 34 of IPC. The appeal is allowed.
Relevant
M/s. J.K. International v. State, Govt of NCT of Delhi and Ors. MANU/SC/0126/2001
Tags : Permission Grant Legality
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Supreme Court
Jagdish and Ors. Vs. The State of Haryana
MANU/SC/1048/2019
06.08.2019
Criminal
Conviction on basis of a solitary eye witness is sustainable only if there is reliable evidence proving guilt of accused
In facts of present case, the two Appellants have been convicted under Sections 302, 149 and 148 of the Indian Penal Code (IPC). The Appellants submits that, once the other Accused have been acquitted, the two Appellants alone cannot be convicted with the aid of Section 149 of IPC. The High Court erred in convicting with the aid of Section 34 in absence of a charge framed under that Section. There is no evidence of any common intention, displaying a prior meeting of minds to commit the assault.
Conviction on basis of a solitary eye witness is undoubtedly sustainable, if there is reliable evidence cogent and convincing in nature along with surrounding circumstances. The evidence of a solitary witness will therefore call for heightened scrutiny. But in the nature of materials available against the Appellants on the sole testimony of PW-1 which is common to all the Accused in so far as assault is concerned, present Court do not consider it safe to accept her statement as a gospel truth in the facts and circumstances of the present case. The possibility of false implication cannot be ruled out completely in the facts of the case.
High Court concluded that the Appellants alone were the assailants of the deceased. The susceptibility of eleven injuries, including incised wounds, by two Accused is considered highly improbable. Therefore, in the entirety of the facts and circumstances of the case, the relationship between PW-1 and the deceased, the existence of previous animosity, present Court cannot Rule out false implication to uphold the conviction of the Appellants on the evidence of a doubtful solitary witness.
In Lallu Manjhi and Anr. v. State of Jharkhand, it was observed that if ten persons were stated to have dealt with blows with their respective weapons on the body of the deceased, and that if each one of them assaulted then there would have been minimum of ten injuries on the person of the deceased. In that case, as noticed, there are 11 injuries on the person of the deceased. The order of the High Court was unsustainable and accordingly set aside. The Appellants are acquitted. The appeal is allowed.
Relevant
Lallu Manjhi and Anr. v. State of Jharkhand, MANU/SC/0004/2003
Tags : Conviction Evidence Credibility
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High Court of Himachal Pradesh
Ashish Sharma Vs. State of H.P. and Ors.
MANU/HP/0989/2019
06.08.2019
Commercial
Once it is admitted that, invitation is open to all, additional condition cannot be imposed
In present case, the 2nd respondent issued an 'Invitation for Bid' for the award of a contract for the periodical renewal work in the State of Himachal Pradesh under the Annual Renewal Programme for the year 2019-2020. The Petitioner submitted his technical and financial bid online. After intimating him through an e-mail that his technical bid has been accepted, the respondents informed the petitioner by a subsequent e-mail sent on the same day that, the duly constituted Committee has rejected his bid during technical evaluation. It revealed that the bid submitted by the Petitioner was treated as nonresponsive, in the light of Clauses 4.3 and 4.5.3(b) of the ITB.
Clause 4.3(a) of Bid document, is a prescription under which the status of the bidder, either as an individual or as a member of the HUF or as a partner in a firm or as a private or public limited company, is sought to be ascertained. It has nothing to do with the status of the individual as a Class-A or Class-B Contractor. It has nothing to do with the registration that is obtained by an individual from the Public Works Department.
In fact, the 'Invitation for Bid', does not restrict the eligibility to bid, only to contractors registered with the Public Works Department. It is an invitation to all and not restricted to the registered contractors or contractors registered for a value equivalent to or higher than the value of the contract. Hence, the first ground on which the technical bid of the petitioner was rejected, does not appear to be valid.
The legal status of a bidder is to be found out by the nature of the constitution. It could be an individual or a partnership firm or a limited company or a limited liability partnership. If the status of the bidder falls under anyone of these categories (other than being an individual), the registration of the same as an entity is what is sought to be inquired by the Pro-forma in Section 2.
Once it is admitted that the invitation is open to all, the Respondents cannot go beyond what is stated in the bid document and impose an additional condition. Therefore, the first ground on which the technical bid of the Petitioner was rejected, with reference to Clause 4.3(a) of the bid document, is liable to be rejected.
Regarding second ground, the claim of the Petitioner is that, his average annual turnover for the past five years, as per the Certificate of the Chartered Accountant, was more than Rs. 1.26 crores. The total value of the contract in question is Rs. 3,68,87,635. Therefore, the Petitioner's average annual turnover for the last five years is greater than 33% of the tender cost. Hence, the Petitioner cannot be said to have not fulfilled the condition stipulated in Clause 4.5.3(a). The Respondents did not dispute the correctness of the claim made by the Petitioner about his average annual turnover. Therefore, the Petitioner in fact satisfies the criteria indicated in Clause 4.5.3(a).
Technically, 'WBM' stands for 'Water Bound Macadam'. It is stated to be only a part of sub grade of any road. Similarly, 'BM' stands for 'Bituminous Macadam', which is said to be an undesigned recipe type, open graded mix used for low traffic roads as a drainage layer. 'BC' stands for 'Bituminous Concrete'. Therefore, present Court not able to make out whether the Petitioner could be taken to have fulfilled the requirement of experience in successfully completing at least one contract of MDR/Highway. The Respondents was right in rejecting the technical bid of the Petitioner on the basis of Clause 4.5.3(b). Petition dismissed.
Tags : Bid Rejection Legality
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Customs, Excise and Service Tax Appellate Tribunal
Raymond UCO Denim Pvt. Ltd. Vs. Commissioner of Central Excise
MANU/CM/0255/2019
05.08.2019
Excise
Credit avail on Service Tax paid on 'Courier Serves' is eligible to Cenvat Credit
Present is an appeal against order-in-original of Commissioner of Central Excise, denying CENVAT credit of Rs. 94,16,769, having been availed on taxes paid for procurement of 'courier service' between April 2005 and September 2009 and of Rs. 3,93,971 on utilising services of 'job workers' for same period. The denial of CENVAT credit on the former was consequent on the finding that, the definition of 'input service' in Rule 2(l) of CENVAT Credit Rules, 2004 specifies various activities that are directly or indirectly connected with the manufacture of goods or rendering of services which does not extend to any activity beyond the place of removal.
With regard to tax levied on conversion fee charged by the job worker, as provider of 'business auxiliary service', the activity for which service tax has been levied, pertains to rendering capital goods workable at regular intervals of usage. The input services pertain to tax discharged on goods used in the manufacture or services utilised for such activity. The repair of machinery is undoubtedly entitled to be considered as a service that has a connection with the manufacturing process. However, it is the tax paid as recipient of 'business auxiliary service' that is claimed to be eligible. There is no evidence on record that, the service on which tax was incurred pertained to re-layering of machinery used in production. Such evidence is required as prima facie, re-layering does not readily lend itself to conformity with definition in Section 65(19) of Finance Act, 1994. There is no reason to consider the tax paid on 'business auxiliary service' to be one that confirms the definition of 'input service' in Rule 2(l) of Rules, 2004.
'Courier service' was undisputedly, utilised for shipment of samples. Admittedly, the samples themselves are not the finished product and the availment of 'courier service,' even if for dispatch of samples is an expenditure that goes into the value of the final product. Though 'courier services' are utilised for despatch of samples, 'transportation' is an entirely different taxable entry, and the transportation that is referred to in the said definition pertain to tax on transportation of goods by road. The disputed CENVAT credit is related to manufacture of the finished goods. Hence, on a plain reading of the provisions of Rule 2(l) of CENVAT Credit Rules, 2004 and the facts and circumstances of the present dispute, along with superfluity, of one to one correlation between 'input services' and 'output,' it would appear that, the availment is not incorrect in law.
The denial of CENVAT credit on availment of services of courier is not in accordance with law and must be set aside. However, in relation to the activity on which tax was discharged by the supplier of business auxiliary service, the coverage of business auxiliary service cannot be held to extend to such activity for the purpose of availment of CENVAT credit. Appellant has raised the plea of bar of limitation as the show cause notice has invoked the extended period. The fact that there had been regular audits does not anywhere hide the suppression of relevant information which could have been laid to crystallisation of tax liability. Audit can only unearth which is declared and which is on record. The activity of business auxiliary service not being entitled to CENVAT credit in the given circumstances would not be on record. Hence, the plea of limitation does not merit acceptance. Appeal allowed.
Tags : CENVAT Credit Denial Legality
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Customs, Excise and Service Tax Appellate Tribunal
Shree Gurukrupa Construction Company Vs. Commissioner of Central Excise & ST, Rajkot
MANU/CS/0161/2019
05.08.2019
Service Tax
Sub-contractor is independently liable to pay service tax even though service tax liability has been discharged by main contractor
The brief facts of the case are that, the Appellant had obtained work orders from Gujarat State Police Housing Corporation Limited (GSPHCL) and accordingly during the year 2009-10 to 2011-12 had constructed residential quarters for the staff of the Gujarat Police. The Appellant had also carried out construction of residential complex for Rajkot Municipal Corporation (RMC) as sub-contractor of Avadh Construction. The Appellant had not paid service tax on the said construction service provided to GSPHCL and RMC, therefore the demand was raised and confirmed under the category of Residential Complex Service.
The Appellant fairly concede that, the Appellant being sub-contractor is liable to pay service tax as held by the Larger Bench of this Tribunal in the case of CST, New Delhi vs. Melange Developers Pvt. Limited. However, he submits that, the entire demand is time-barred as the show cause notice was issued beyond the normal period. He submits that, there is no malafide on the part of the Appellant. The appellant had not paid service tax as there was confusion that whether the sub-contractor is liable to pay service tax when the entire service tax was paid by the main contractor. On this issue, there were conflicting judgments and finally the issue was settled by the Larger Bench in the case of Melange Developers Pvt. Limited. Therefore, in these circumstances, it cannot be said that, the appellant suppressed the facts or had malafide intention to evade the service tax.
There is no dispute on the taxability as has been held by the Larger Bench that the sub-contractor is independently liable to pay service tax even though service tax liability has been discharged by the main contractor. Therefore, in the present case, demand on merit is clearly sustainable. As regards the limitation argued by the Counsel, the confusion arose due to Board Circular issued in 2002 wherein the Board has clarified that in case of sub-contractor, the service tax is not payable by sub-contractor, if service tax is discharged by the main contractor. However, the Circular was amended in 2005 and thereafter the issue became clear that, the sub-contractor was required to pay service tax and the conflicting judgments were due to the earlier Board Circular.
However, after 2005, there was no reason for the assessee to believe that, the sub-contractor is not liable for payment of service tax. If any assessee is of the belief that being sub-contractor they are not liable to pay service tax, in the light of amendment in Circular in 2005, the assessee should have approached the department and make the position clear regarding their bonafide belief. But in the present case, the Appellant did not approach the department regarding their bonafide belief nor did they obtain the registration. Therefore, when the Board issued amendment in 2005, it cannot be said that, the Appellant entertained bonafide belief correctly. The impugned order is upheld. The appeal is dismissed.
Tags : Demand Confirmation Legality
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High Court of Himachal Pradesh
Seema Devi and Ors. Vs. State of Himachal Pradesh and Ors.
MANU/HP/0959/2019
01.08.2019
Criminal
Freedom of an individual is of utmost importance and same cannot be curtailed for indefinite period during the trial
Issue in present case is relating to grant of bail. Learned Additional Advocate General, on the instructions of Investigating Officer, stated that, pursuant to order dated 18th July, 2019, bail Petitioners have already joined the investigation and they are fully co-operating with the investigating agency. It is further submitted that, investigation is almost complete save and except report of visra and handwriting expert, which are yet to be received, and as such, custodial interrogation of the bail Petitioner(s) is not required and they can be ordered to be enlarged on bail subject to the condition that, they shall make themselves available for investigation and trial as and when called by the investigating agency.
It is well settled that, freedom of an individual is of utmost importance and cannot be curtailed for indefinite period. Till the time guilt of accused is not proved, in accordance with law, he/she is deemed to be innocent. In the case at hand, the guilt, if any, of the bail Petitioners is yet to be proved, in accordance with law.
Recently, the Hon'ble Apex Court in case of Dataram Singh vs. State of Uttar Pradesh & Anr. has categorically held that, freedom of an individual is of utmost importance and same cannot be curtailed for indefinite period during the trial. Hon'ble Apex Court has further held that, till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent.
Object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
Consequently, in view of the above, order dated 18th july, 2019, passed by this Court, is made absolute in all the bail petitions, with conditions. It is clarified that, if the Petitioners misuse their liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. The bail petitions stand disposed of accordingly.
Tags : Bail Grant Conditions
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