Case Law Digest - October,2014

CASE LAW DIGEST – OCTOBER

2014

CASE LAW DIGEST - OCTOBER 2014 Manjeet kumar Sahu  Grave provocation after all is a momentary loss of one’s capacity to differentiate between what is right and what is not. So long as that critical moment does not result in any damage, the incident lapses into realm of memories to fuel his desire to take revenge and thus act as a motivation for the commission of a crime in future. But any such memory of a past event does not qualify as a grave and sudden provocation for mitigating the offence. - Says Supreme Court

B.D. Khunte v. Union of India & Ors. CRIMINAL APPEAL NO. 242 OF 2012 Judgment Dated: 30/10/3014 CORAM: T.S. THAKUR .J, ADARSH KUMAR GOEL .J, R. BANUMATHI .J Brief Facts of the Case: Young Jawan of Indian Army assaulted(act of sodomise) and beaten by his superior at 1:00 P.M in the afternoon - The Jawan planned to beat him in the evening - However, at night around 8:00 P.M, he went on his night duty and when he noticed his superior approaching towards him - He fired 18 bullets and was arrested on the spot - Now, he claim leniency over the commission of an offence by attracting Exception I of Section 300 IPC - However, The 3-judge Bench of the Supreme Court rejected the same stating the the conduct is an act of revenge and seven hours long gap was sufficient for him to cool down - the provocation must not only be grave but sudden as well, which is completely absent in the present matter.  When several people participate in commission of an offence with deadly weapons and attack one or more persons with an intention to kill them then the witnesses who are closely related to the victims are not expected to describe the incident in graphic detail and with such precision that which member and in what manner he participated in the commission of offence. Their evidence is required to be appreciated in its totality. - Says Supreme Court

Nand Kumar v. State of Chhattisgarh CRIMINAL APPEAL No.906 OF 2012 Judgment Dated : 31/10/2014 CORAM : FAKKIR MOHAMED IBRAHIM KALIFULLA .J, ABHAY MANOHAR SAPRE .J CATCHPHRASE: 1. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly, is guilty of that offence (Masalti v. State of U.P)

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2. A close relative cannot be characterised as an “interested” witness but rather a “natural” witness. (Namdeo v. State of Maharashtra) 3. It will be a travesty of justice, if we do not believe the sworn testimonies of these two eyewitnesses, which in our considered opinion, remained consistent throughout on material issues. Indeed, there is no valid reason for this Court to disbelieve them.  Preparation of food items in the kitchen of the Gymkhana Club amounts to “manufacturing process” and that the employees are covered under the purview of the ESI Act. - Says Supreme Court

DELHI GYMKHANA CLUB LTD. v. EMPLOYEES STATE INSURANCE CORPN. CIVIL APPEAL NO. 2415 OF 2003 Judgment Dated:28/10/2014 CORAM: T.S. Thakur .J, R. Banumathi .J Issue Involved: Whether preparation of food items in the kitchen of the Gymkhana club amounts to “manufacturing process” bringing the club within the purview of the definition of „factory‟. Rationale: 1.All the persons employed for the purpose of supply and distribution of food prepared in the kitchen and for doing other incidental duties in connection with the kitchen and catering are to be regarded as employees of the factory.(Para 17) 2.And, It hardly matters for the employee whether the appellant‟s kitchen is run with any profit making motive or not. 3.ESI Act is a beneficial piece of social welfare legislation aimed at securing the well-being of the employees and the court will not adopt a narrow interpretation which will have the effect of defeating the objects of the Act.(Para 18)  The 3-judge Bench of the Supreme court stated that "21 years time is enough to reflect that the party is not having bona fide intention to make the payment and eventually, ordered the aggrieved to acquire the possession of the disputed land.

HUDA & Anr. v. Kedar Nath CIVIL APPEAL NO. 9951 OF 2014 Judgment Dated : 29/10/2014 CORAM: ANIL R. DAVE .J, KURIAN JOSEPH .J, R.K. AGRAWAL .J Brief facts of the Case: Respondent was the highest bidder in an auction conducted by the Appellant - Part Payment was made(However, irregularities were made even on the part payment) - Deadline to pay the full amount ended on 1993 - On 5th September, 2014, this Court had passed an order directing the

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respondent to pay at least Rs.13 lakhs before 10th October, 2014 - However, he has not paid the remaining amount till today.  The Apex Court rejuvenated that concept of "Nemo moriturus praesumitur mentire" means "no one at the point of death is presumed to lie."

Mallella Shyamsunder v. State of Andhra Pradesh CRIMINAL APPEAL NO. 1381 OF 2011 Judgment Dated: 29/10/2014 CORAM:VIKRAMAJIT SEN .J, KURIAN JOSEPH .J Brief Facts of the Case: Woman did not bring the balanced dowry - Husband and Mother-in-Law killed her by burning - FIR lodged on the basis of dying declaration- Ante mortem report supported the same - Conviction sustained and conversion of sec.302 into sec.304 Part-II was not entertained.  The 3-Judge Bench of Supreme Court applying the Doctrine of Legislative Intent stated that Section 22 SICA,1985 shall prevail over the provision for the recovery of debts in the RDDB Act,1993.

KSL & INDUSTRIES LTD. v. M/S ARIHANT THREADS LTD. & ORS. CIVIL APPEAL No. 5225 OF 2008 Judgment Dated: 27/10/2014 CORAM: H.L.DATTU CJI, S.A. BOBDE .J, ABHAY MANOHAR SAPRE .J CATCHPHRASE: 1.The Substantial question of law arose due to a Non-Obstante clause Sec.34 of RDDB,1993. 2. SICA is a special law, which deals with the reconstruction of sick companies and matters incidental thereto, though it is general as regards other matters such as recovery of debts. 3.The RDDB Act is also a special law, which deals with the recovery of money due to banks or financial institutions, through a special procedure, though it may be general as regards other matters such as the reconstruction of sick companies which it does not even specifically deal with. 4. Thus the purpose of the two laws is different. 5. Application of Maxim " Ut res magis valeat cum pereat" Obiter Dicta: Interpretation of Sec.22 of SICA is provided in para 49, 50 & 51 of the judgment.(very Important)

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Subject : Criminal Law ( Sec. 498-A, 302,201 IPC and Sec.174 CrPC)

When a scientific evidence was found to be existing the story spun by the appellant that his wife was hanging from the roof with the aid of a saree has been found to be nothing but a concocted one designed to escape from his culpability.- Says Supreme Court Munni @ Syed Akbar v. State of Inspector Of Police, All Women Police Station, Gobichettipalayam, Erode CRIMINAL APPEAL NO. 2475 of 2009 Judgment Dated: 29/10/2014 CORAM: Fakkir Mohamed Ibrahim Kalifulla .J, Abhay Manohar Sapre .J  The Supreme Court in a judgment stated that "When the driver possesses valid driving licence for driving light vehicle but fails to obtain endorsement for driving light goods vehicle, this cannot be a ground for the insurer to deny payment of compensation.

KULWANT SINGH & ORS. v. ORIENTAL INSURANCE COMPANY LTD. CIVIL APPEAL NOS. 9927-28 OF 2014 Judgment Dated : 28/10/2014 CORAM: V. GOPALA GOWDA .J, ADARSH KUMAR GOEL .J Issue Involved: Whether the Insurance Company is entitled to recovery rights on the ground of breach of conditions of insurance policy when the driver possesses valid driving licence for driving light vehicle but fails to obtain endorsement for driving goods vehicle. Observation: There was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights.  The Supreme Court clarified that "Merely because the wife was earning something, it would not be a ground to reject her claim for maintenance".

Sunita Kachwaha & Ors. v. Anil Kachwaha CRIMINAL APPEAL NO. 2310 OF 2014 Judgment Dated: 28/10/2014 CORAM: T.S. Thakur .J, R. Banumathi .J Brief Facts of the case: Marriage solemnised - 10 years later, Wife with her two children left the house on the ground of harassment and torture - Claimed for maintenance - Family Court awarded the same - Decree was set aside by the High Court and Hence, this appeal.

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 The Constitution Bench of the Supreme Court succinctly interpreted the term " Advice" under Art.75 of the Constitution and emphasised on the upkeeping of Democratic set up of the Government.

Manoj Narula v. Union of India WRIT PETITION (CIVIL) NO. 289 OF 2005 Judgment Dated : 27th August, 2014 CORAM : R.M Lodha CJI, S.A Bopde .J, Dipak Misra .J, Madan Mohan Lokur .J, Kurian .J Some points: 1.Para 85 to 87, 116 worth noting, 2. Doctrine of Constitutional Trust 3. Two kinds of Doctrine of Implied Limitation 4. Purity of Election 

Scheduled Caste student who has secured above cut off for General Category shall be allotted seat only in General Category and will not consume a seat reserved for Scheduled Caste(SC) category.- says Punjab and Haryana High Court Alka v. U.T. Administration through Advisor CWP No.18264 of 2014 Judgment Dated: 09/10/2014 CORAM:K. KANNAN .J Summary of the case: Reservation to SC is vertical reservation- SC student who has secured above cut off for General Category shall be allotted seat only in General Category and will not consume a seat reserved for SC category- violation noticed- directives issued- Another SC candidate directed to admitted to Govt. Nursing College. 

Happy New Year granted "Ashok Kumar Order " ahead of its release.

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"John Doe Order" is recognised as "Ashok Kumar Order" in India.

Red Chillies Entertainments Private Limited v. Hathway Cable & Datacom Ltd. SUIT (L) NO. 993/2014 Order Dated: 14/10/2014 CORAM: G. S. PATEL .J Brief facts of the Case: The production house has recently obtained a John Doe order from the Bombay High Court dated 14th October, 2014 which restrains any person from “telecasting/broadcasting/distributing/putting on the cable TV network/disseminating/reproducing or otherwise making available to the public, the film „Happy New Year‟” or “from (i) making a copy of the said film, including a photograph of any image forming part thereof, (ii) to sell or give on hire, or offer for sale or hire, any copy of the said film, regardless of whether such copy has been sold or given on hire on earlier occasions, (iii) to

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communicate the film to the public in any manner whatsoever including by way of but not limited to telecasting and/or re telecasting the said film, or even otherwise dealing with the rights in the said film which vest exclusively in the Plaintiff, in any manner whatsoever.” ; the order also restrains others “from communicating or making available or distributing, or duplicating, or displaying, or releasing, or showing, or uploading, or downloading or exhibiting, or playing, and/or defraying the movie “HAPPY NEW YEAR” in any manner without proper license from the Plaintiff or in any other manner which would violate/infringe the Plaintiff‟s copyright in the said cinematograph film “HAPPY NEW YEAR” through different mediums like CD, DVD, Blu-ray, VCD, Cable TV, DTH, Internet, MMS, Tapes, Conditional Access System or in any other like manner.” P.S: “John Doe” orders or “John Doe” injunctions are “cease and desist” orders passed by a court of law against anonymous entity/entities.A John Doe injunction is given under Order 30 Rule 1 of The Civil Procedural Code,1908  There is no prohibition in the Land Acquisition Act, 1894 from acquiring a piece of land, which had earlier undergone land acquisition proceedings and is in possession of a Central Government undertaking - says Kerala High Court.

M/S.NTPC LIMITED v. STATE OF KERALA WA.No. 1936 of 2013 Judgment Dated: 14/10/2014 CORAM: ASHOK BHUSHAN CJ, A.M.SHAFFIQUE .J Brief facts of the case: State Government acquired the land - Granted it to the Appellant for the establishment of Thermal Power Project - However, Some of the Land were still unused - State Govt. took the land for the construction of medical college- Appellant objected the same SUSTANTIAL QUESTION OF LAW INVOLVED: Whether a land once acquired under the Land Acquisition Act, 1894 for the benefit of a requisitioning body can be again made subject of acquisition for the benefit of another requisitioning body? The Court answered in affirmative.. Important catchphrase in the judgment: 1. Concept of "Eminent Domain" 2. Application of Sec.14 of General Clauses Act,1897 : (Power given under the Central Act can be exercised from time to time as occasion requires.) Refer para 16 and 17 of the judgment  Declaration of unconstitutionality of Section 17-A with sub-sections (1) to (4) of the Industrial Disputes Act, 1947 holds good even today - Says Division Bench of Madras High Court

Union of India v. Textile Technical Tradesmen Association & Ors. Writ Appeal No.56 of 2011 Judgment Dated: 16/10/2014

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CORAM : N.PAUL VASANTHAKUMAR .J, K.RAVICHANDRA BAABU .J CONCLUSION: 1.Legislature has no power to declare the final judgment of the Court a nullity as it is in violation of the doctrine of separation of power. 2. Interpretation of Art.226(2) of the Indian Constitution:Article 226(2) of the Constitution of India empowers the High Courts to declare even a Central Legislation as invalid, which will have effect throughout the Territory of India if the enactment was extended throughout the country 3.If a Parliamentary enactment is declared as unconstitutional by one High Court and if the said order has become final, the said order is applicable and enforceable throughout India and the attempt on the part of the appellant in restricting the applicability of the Andhra Pradesh High Court judgment is contrary to Article 226(2) of the Constitution of India. 4. In Telugunadu Workcharged Employees State Federation, Nalgonda District Unit President v. Government of India (1997) 3 ALT 492) , the very same provision viz., Section 17-A with subsections (1) to (4) was struck down on the ground of violation of basic structure of the constitution and also held that the Judgment of the Court cannot be nullified by the executive order as it affects the basic structure of the Constitution of India.(Refer para 7 of the judgment) 

Evidence of Prosecution Witnesses cannot be a sole basis for conviction - Says Supreme Court Kuldeep Kaur v. State of Uttarakhand CRIMINAL APPEAL NO.2267 OF 2014 Judgment Dated: 17/10/2014 CORAM: M.Y. Eqbal .J, Pinaki Chandra Ghose .J Subject : Sec.306 of IPC Brief facts of the case: Matrimonial Issue - Dowry demand and death of the wife - FIR lodged under Sec.304-B/498-A IPC and Sec.3/4 of Dowry Prohibition Act,1961 - However, The appellant(Mother-in-Law) was found guilty under Sec.306 of IPC by the Trial court - upheld by the High Court - Now, the present appeal. Moral Ground submitted on behalf of the Appellant's Counsel 1. Has already undergone six months of custody 2. She is an old lady aged about 86 years. 3. The appellant has undergone heart surgery and is also suffering from various old age ailments and practically confined to bed 4. No specific allegations against the Appellant. 

The Supreme Court stated that DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with

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the wife, for her to rebut the assertions made by the husband and to establish that she had not been unfaithful, adulterous or disloyal. Dipanwita Roy v. Ronobroto Roy CIVIL APPEAL NO. 9744 OF 2014 Judgment Dated : 15/10/2014 CORAM : Jagdish Singh Khehar .J, R.K. Agrawal .J Important Points of Law scrutinized in the present matter: 1. Sec.112 of Indian Evidence Act is Rebuttable Presumption.(Refer para 8 of the Judgment) 2. Interpretation of the term "access" under Sec.112 of Indian Evidence Act,1872 (Refer para 8 of the Judgment) 3.Whether DNA Test leads to an encroachment upon the Right to Privacy.(Refer para 8 and 9 of the judgment )

Another Observation : When there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former( Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and another, (2014) 2 SCC 576)

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"Suspicion however strong cannot be a substitute for proof. In a case resting completely on the circumstantial evidence the chain of circumstances must be so complete that they lead only to one conclusion, that is, the guilt of the accused"... Says Supreme Court ANANDA POOJARY v. STATE OF KARNATAKA CRIMINAL APPEAL NO. 2202 OF 2014 Judgment Dated: 14/10/2014 CORAM : A.K. SIKRI .J, J. CHELAMESWAR Brief Facts of the Case: Appellant used to take care of the deceased(Old woman) and her mentally challenged brother - Due to love and affection - Deceased executed a will bequeathing all her movable and immovable properties in favour of the Appellant - Condition imposed to the Appellant(Hindu) was that he must marry a christian lady- Later, Deceased died due asphyxia and applying the principle of " last seen theory and his eagerness to acquire her properties"- the FIR was lodged against the accused merely on the ground of suspicion under Sec.302 and 201 of IPC - Session Court as well as the High Court have convicted the accused. However, The Apex Court allowed the appeal and granted benefit of doubt to the accused. CATCHPHRASE: The Apex Court has also discussed about the maintainability of an appeal under Article 136 of the Indian Constitution and relied upon the judgment of Mahesh Dattatray Thirthkar v. State of Maharashtra, (2009) 11 SCC 141 (Refer para 33 of the Judgment)

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The Division Bench of Supreme Court elucidated the concept of Sec.433 CrPC stating it as an executive as well as discretionary function of the government and hence, judiciary cannot direct the government concerned to exercise such function. "When the appropriate Government commutes the sentence, it does so in exercise of its sovereign powers. The court cannot direct the appropriate Government to exercise its sovereign powers. The Court can merely give a direction to the appropriate Government to consider the case for commutation of sentence and nothing more. This legal position is no more res integra. "(Para 9 of the Judgment) State of Rajasthan v. Mohammad Muslim Tagala CRIMINAL APPEAL NO.2184 OF 2014 Judgment Dated: 13/10/2014 CORAM: Ranjana Prakash Desai .J, N.V. Ramana .J 

Principle of Purposive Construction

The Provision states "The service of an employee in a Revenue District within the radius of 15 Kms is to be considered as service in the same station." Ambiguity in the provision: 1. It does not however specify what should be the basis to reckon the radius of 15 Kms in the first place. 2.One could have been tempted to take the place of present working as the reckoning point to determine the radius. The Kerala High Court interpreted the provision in below mentioned manner: " If an employee works in different places within the radius of 15 Kms , it shall be treated as one continuous service within that Revenue District". CHITHRALEKHA. K v. KERALA HEADLOAD WORKERS' WELFARE BOARD WP(C).No. 20156 of 2014 Judgment dated: 25/09/2014 CORAM :DAMA SESHADRI NAIDU .J 

If a person has already rejected the promotion order , He cannot again demand the same as a matter of right - says Supreme Court Subject: Constitutional Law ( Article 14 and 16 of the Indian Constitution) STATE OF MADHYA PRADESH & ORS. v. RAMANAND PANDEY CIVIL APPEAL NO. 9486 OF 2014

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Judgment Dated: 10/10/2014 CORAM : A.K. SIKRI, J , CHELAMESWAR .J Brief Facts of the Case: 1.The Respondent was selected for the promotion after serving for 15 years at Bhind. 2. However, the Promotion Order clearly stated that in case any departmental inquiry or prosecution was pending against the candidate, then the promotion shall be treated to be cancelled. 3. The Respondent speculated that some farmers had moved a complaint against him and since that complaint was pending, till the same is finalized, he was ready to take earned leave until the inquiry is disposed of. Interestingly, he also stated that he would continue to work on the post of ADO (which is a promotion post), but at District Bhind. And, he returned the promotion order, in original, to the authorities. After receiving the said representation, the authorities took the view that the respondent was not interested to join the promotion post at Sagar. CONCLUSION: The Apex Court observed that since there was no departmental inquiry, he should report at the Sagar Office or even if such a complaint is pending, that is no reason not to join the office in District Sagar. At the same time, the court find that the respondent was not interested joining the duties at Sagar and cancelling the promotion for that reason cannot be treated as illegal or arbitrary. 

"In order to establish the constructive possession over the property, Merely collecting of rent from the tenants inducted by the donor is not enough but the donor must show the rent receipts and also, the land needs to be mutated in favour of the donor by the revenue authorities." - Says Supreme Court Rasheeda Khatoon (D) Through LRs. v. Ashiq Ali s/o of Lt. Abu Mohd (D) Through LRs. CIVIL APPEAL NO. 603 OF 2009 Judgment Dated: 10th October, 2014 CORAM : Dipak Misra .J, Vikramajit Sen .J Brief Facts of the Case: 1. There was an execution of oral gift deed to the appellant and Later on , the Appellant also executed oral as well as written gift in favour of the person. ISSUE INVOLVED: Whether all the essential ingredients of the gift as is understood in the Muhammadan Law have been satisfied in the present case? The three essential ingredients of the gift are as follows: 1. A declaration of gift by the donor 2. Acceptance of the gift, express or implied, by or on behalf of the donee 3.Delivery of possession( Actual or Constructive ) of the subject of the gift by the donor to the donee

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The present matter succinctly discuss about the concept of "Delivery of Constructive Possession of Property" 

"Instead of enacting a law as a safeguard against illegal constructions or unauthorized colonies, the State enacted Punjab Laws (Special Policy) Act, 2013 to regularize all unauthorized colonies, buildings etc. " . Says the Punjab and Haryana High Court Gurdeep Kaur v. State of Punjab & Ors. CWP No.4018 of 2012 Judgment Dated: 07/10/2014 CORAM: RAJAN GUPTA .J CONCLUSION: The Hon'ble Judge failed to reach any conclusion. However, he referred the matter to the larger bench in order to decide that : 1. Whether enactment bears any rational nexus to the object sought to be achieved. 2. Whether the policy framed within the avowed object of providing succor to residents of unauthorized colonies actually benefits the colonizers. 3. whether the enactment is colourable piece of legislation Trivia :The power to regulate also includes power to stop the irregularity being committed.

The Delhi High Court dismissed a suit by a media house purporting copyright infringement on its database of users, as the database was “nothing but a collection of e-mail addresses" TECH PLUS MEDIA PRIVATE LTD v. JYOTI JANDA & ORS CS(OS) 119/2010 Judgment Dated:29/09/2014 Brief Facts of the Case: The plaintiff claimed that collection of data amounted to an original expression of thoughts of the plaintiff and preparing the database involved “immense original skill, thought process and imagination”. CONCLUSION: The Court held that the plaint did not disclose how the database in question could be afforded copyright protection, as “the said databases are nothing but a collection of the e-mail addresses of the visitors to the website/news portal of the plaintiff.” The Court referred to the landmark decision of the Supreme Court in Eastern Book Company v. D.B. Modak (2008) where it was held that for a compilation of data to be protected by copyright, it must be demonstrated not only that the creator exercised labour and capital, but also skill and judgment such that it is not a mechanical exercise. The Court also commented on how the Copyright Act is often being misused by employers to harass employees who have quit employment. This is especially evidenced by the fact that such suits are

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usually only pressed till interim stage (when the opposite party is sufficiently “scared”) and are abandoned thereon. CATCHPHRASE: 1. The plaintiff being a juristic person is incapable of being the author of any work in which copyright may exist. 2. Application of Doctrine of "Sweat of the Brow" have been outcasted by Doctrine of modicum of creativity.

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