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2008 (7) TMI 1097 - SUPREME COURT
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... ... ..... onsidered in the present proceedings because the impugned directions of the High Court are unsustainable. We therefore set aside that part of the order directing release of respondents 1 to 9 on bail. The High Court had completely foreclosed consideration of the application for bail. It also did not examine the question as to the desirability of respondents 1 to 9 being released on bail. Merely because according to the High Court the learned SDJM had not followed the directions in its proper perspective that could not have been a ground for directing release of respondents 1 to 9 on bail. We, therefore, set aside the direction contained in the impugned order regarding grant of bail to respondents 1 to 9. Let the respondents appear before the concerned Court where the trial is in progress. If any application for bail is made, the same shall be considered in its proper perspective by the concerned Court. We express no opinion on the merits of the case. 9. The appeal is allowed.
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2008 (7) TMI 1096 - SC ORDER
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... ... ..... y condoned. The Civil Appeal is dismissed. No costs.
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2008 (7) TMI 1095 - CALCUTTA HIGH COURT
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... ... ..... 28. There shall be no order as to costs. 29. As the case is pending since 1996, learned Court below shall proceed as expeditiously as possible and conclude the trial within a period of six months from the date of receipt/communication of the order. 30. I make myself absolutely clear that I have not entered into any discussion either about the merit of the complaint case or about the value of evidence, which is already on record. Learned Court below shall decide the matter independently without being influenced by any of the observation as recorded in the body of the order. 31. No separate order is required to be passed in the application filed by the opposite party being CRAN 1739/2008 and the same stands disposed of along with this revisional application. 32. Criminal Section is directed to forward a copy of the order to learned Court below immediately. 33. Criminal Section is also directed to supply urgent certified copy of the order to the parties as and when applied for.
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2008 (7) TMI 1094 - SUPREME COURT
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... ... ..... ashed to secure the ends of justice, but such a stage will come only after evidence is led, particularly when the prosecution had produced sufficient material for charges to be framed. As observed in Debendra Nath Padhi's case (supra) at the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage. At the stage of framing of charge the submissions on behalf of the accused has to be confined to the material produced by the investigating agency. The accused will get an opportunity to prove the documents subsequently produced by the prosecution on the order of the Court, but the same cannot be relied upon to re-open the proceedings once charge has been framed or for invocation of the High Court's powers under Section 482 of the Code of Criminal Procedure. 17. Accordingly, no interference is warranted with the orders passed by the learned special Judge or the High Court, and the appeal is, therefore, dismissed.
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2008 (7) TMI 1093 - SC ORDER
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... ... ..... Mr. B.V. Balaram Das, Adv. For the Respondent None. ORDER The special leave petition is dismissed on the ground of delay as also on merit.
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2008 (7) TMI 1092 - SC ORDER
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... ... ..... r. Pradeep Shukla, Adv. And Mr. B.V. Balaram Das,Adv. For the Respondent None ORDER Delay condoned. Dismissed.
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2008 (7) TMI 1091 - SUPREME COURT
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... ... ..... ashmir Hindu Succession Act, we clarify that all those observations which were not relevant in view of the limited question before the Revenue Authorities, would have no effect in the proceedings before the Civil Court if such proceedings have been initiated in a competent Court. 20. We, therefore, dispose of this appeal by granting liberty to the parties to take appropriate proceedings in a competent Civil Court by making it clear that the observations made in the orders of Revenue Authorities as also by the High Court will not come in the way of the parties in a suit as and when proceedings have been initiated for the purpose of determination of substantive rights of ownership. 21. For the aforesaid reasons, the appeal deserves to be allowed and is accordingly allowed by setting aside the order passed by the Division Bench and by granting liberty to the parties to take appropriate proceedings. On the facts and in the circumstances of the case, there is no order as to costs.
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2008 (7) TMI 1090 - KARNATAKA HIGH COURT
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... ... ..... e medium of instruction at the primary level is valid and legal, in the case of schools run or aided by the State. (10) But, the Government policy compelling children studying in other Government recognized schools to have primary education only in the mother tongue or the regional language is violative of Article 19(1)(g), 26 and 30(1) of the Constitution of India. 199. (a) Accordingly, the Writ Petitions except W.P. No. 21052/1994 and W.P. No. 5618/1993 and the Writ Appeal are partly allowed, quashing Clauses (2), (3), (6) and (8) of the impugned order in its application to schools other than schools run or aided by the Government (b) The rest of the Government Order is upheld. All the orders, endorsements, circulars, issued giving effect to the aforesaid Clauses (2), (3), (6) and (8) in the impugned order are also quashed. (c) Writ Petitions 21052/1994 and 5618/1993 are delinked and they are sent back to the single Bench for decision in the light of this judgment No costs.
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2008 (7) TMI 1089 - ORISSA HIGH COURT
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... ... ..... ndant No. 1 be impleaded as parties to the suit and notice in the matter may be issued to them. Before parting, it becomes necessary on my part to take note of the fact that the trial Court should never forget for making justice oriented approach in matters concerning delay and this would go along with effective adjudicating the dispute on merits. It must never be forgotten that the objective of the litigant is to seek adjudication of their disputes. Accordingly, rejecting an application for substitution on the ground of delay alone does not in any manner subserves such purposes. The trial Court should always keep in mind the direction of the Hon'ble Supreme Court as well as of this High Court and effectively exercise its jurisdiction in a manner so as to justify the ends of justice as has been described as the "life-purpose for the existence of the institution of Courts". 9. With the aforesaid observations and directions, the writ petition is allowed. No costs.
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2008 (7) TMI 1088 - BOMBAY HIGH COURT
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... ... ..... iation or declaration of law, the same would be binding even though such declaration was not strictly necessary for disposal of the case or the declaration of law is not followed by actual application thereof in the case in question. The law declared as well as applied in a particular decision becomes ratio decidendi of the case while a mere declaration of law, even though solemn and thoroughly reasoned, without application thereof is branded as obiter dicta. In our opinion, having explained the ratio decidendi in Devaraju Pillai (supra) and even considering the argument that the obiter dicta is binding, clearly there is no declaration or enunciation of law by the Supreme Court as to review based on the rules made by this Court. 13. Considering the above, the Reference is answered as under Question No. 1 in the negative. Question No. 2 in the affirmative. Reference disposed of accordingly. The Registry to place the matter before the Judge assigned to take up Review Petitions.
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2008 (7) TMI 1087 - CALCUTTA HIGH COURT
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... ... ..... hat Section 114(iii) which has been applied by the adjudicating Commissioner for imposition of penalty does not have any application to the present case. In view of our finding as above that the penalty has been imposed under a provision which is not applicable in respect of the goods exported under free shipping bills, the impugned order in so far as it relates to imposition of penalty on the two appellants in the present appeals, cannot be sustained. Hence, we set aside the impugned order in so far as it relates to the two appellants before us and allow their appeals.” In view of that we do not find that there is any illegality in the order passed by the learned Tribunal. Hence the appeal being CUSTA No.5 of 2008 is dismissed. All parties concerned are to act on a signed copy of the minutes of this order on the usual undertakings. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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2008 (7) TMI 1086 - MADRAS HIGH COURT
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... ... ..... stigation was also conducted by the assessing officer himself and the same is now pending with the Assessing Officer, Madurai, with all books of accounts. The transfer order was passed on 28.6.2007. Prior to the said date the matter was with the Assessing Officer, Trichy, who is none other than the third respondent. The investigating officer and the assessing officer being one and the same officer, the judgment relied on by the learned Senior Counsel for the petitioner reported in 166 ITR 244 (cited supra) will not help the petitioner in any manner and the facts in this case is identical to the facts of the case arose before the Division Bench of Kerala High Court reported in (2006) 283 ITR 153 (Ker) (cited supra). 13. In the light of the above findings, I hold, no case is made out by the petitioner to issue a writ of mandamus as sought for. There is no merit in the writ petition and the writ petition is dismissed. No costs. Connected miscellaneous petition is also dismissed.
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2008 (7) TMI 1085 - BOMBAY HIGH COURT
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... ... ..... carried out does not amount to manufacture? 2. Whether in the facts and circumstances of the case and in law, the Hon’ble CESTAT is justified in allowing the CENVAT Credit deposits (sic) the fact that the process carried out does not amount to manufacture and under the CENVAT Credit Rules, the credit is available only if the process carried out is the manufacturing process?
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2008 (7) TMI 1084 - SC ORDER
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... ... ..... (Control) Appellate Tribunal, West Zonal Bench at Mumbai (for short ‘the Tribunal’). The Tribunal, by the impugned order, has set aside the order-in-original and dropped the proceedings placing reliance on a judgment of this Court in the case of Union of India v. Atic Industries Pvt. Ltd., 1984 (17) E.L.T. 323. It has been held that respondent No. 1 was not related to respondent No. 2 within the meaning of Section 4(1)(a) read with Section 4(4)(c) of the Act. It has been found that respondent No. 1 did not have any interest in the Standard Batteries Limited and, therefore, it will not come within the meaning of the term “related person”, as indicated under Section 4(4)(c) of the Act. Counsel appearing for the revenue has failed to satisfactorily show that there is any infirmity in the order passed by the Tribunal. The finding recorded by the Tribunal is a finding of fact which cannot be interfered with. The Appeals are dismissed accordingly. No costs.
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2008 (7) TMI 1083 - ITAT MUMBAI
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... ... ..... mply its requirements for his past actions or omissions. We are further of the view that these deep discount bonds are capital assets, hence, profit arising on redemption thereof is to be treated as capital gain. In this view of the matter, we hold that the order of the learned Commissioner (Appeals) is not correct in law. Accordingly, we reverse the same and direct the assessing officer to accept the claim as made by the assessee. Thus, this ground of the assessee is accepted. 8. In ground No. 2, the assessee is aggrieved by the decision of learned Commissioner (Appeals) in confirming the assessing officer's decision for charging interest under Sections 234B and 234C of the Act. This ground is consequential to ground No. 1 and in view of our decision in respect thereof, the assessee is not liable to pay any interest under Sections 234B and 234C of the Act. Thus, this ground is dismissed as infructuous. 9. In the result, appeal filed by the assessee stands partly allowed.
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2008 (7) TMI 1082 - SUPREME COURT
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... ... ..... and Anr. 2005CriLJ127 , again this Court reiterated the same principle and held that the statutory notice under Sections 138 and 142 of the Negotiable Instruments Act, 1881 sent to the correct address of the drawer but returning with the endorsement must be presumed to be served to the drawer and the burden to show that the accused drawee had managed to get an incorrect postal endorsement letter on the complainant and affixed thereof have to be considered during trial on the background facts of the case. 9. That being the position, we are unable to sustain the order of the High Court and the impugned order is set aside and the proceeding started under Section 138 of the Negotiable Instruments Act is restored to its original file. The appeal is, therefore, allowed to the extent indicated above. We, however, make it clear that at the trial stage on the question of interpretation, postal endorsement affixed thereof shall be considered on the background facts of the present case.
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2008 (7) TMI 1081 - SUPREME COURT
Murder - Challenge the judgment of a learned Single Judge for altered the conviction to Section 304 Part II - What is the object of examination of an accused u/s 313 of the Code? - HELD THAT:- The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab [1962 (7) TMI 38 - SUPREME COURT] Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with.
It is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.
At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in Clause (a) of Sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under Clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.
In certain cases when there is perfunctory examination u/s 313 of the Code, the matter is remanded to the trial Court, with a direction to re-try from the stage at which the prosecution was closed.
In the instant case, the questions put to the accused in his examination u/s 313 read as follows: The witnesses have stated in their evidence that at about 9.30 a.m. on the day of occurrence you caused severe injuries to Khairul Hoque by assaulting him on the head from behind with a piece of timber and that in the evening on the very day he succumbed to the injuries in Guwahati Medical College Hospital. You may say if you have any regarding the evidence.
P.W. 10 Ahindra Kumar Kalita (S.I. of Police) has stated in his evidence that during his investigation into this case when you produced a piece of timber he seized it through Ext.4. You may say if you have any regarding this evidence.
You may say if you have any as regards allegation of committing murder leveled against you and other evidence. You may adduce evidence in defence if you have any. Summon witnesses.
As rightly contended by learned Counsel for the appellant no witness has stated that on the date of occurrence the accused had caused severe injury to the deceased by assaulting him on the head from behind. The circumstances which were relied upon by the trial Court to find the accused guilty were not specifically brought to the notice of the accused. Therefore, in essence, his examination u/s 313 of the Code was rendered an empty formality. On that count alone, the impugned judgment of the High Court cannot be sustained and is set aside. The conviction recorded stands set aside. The bail bond of the appellant who is on bail shall stand discharged.
The appeal is allowed.
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2008 (7) TMI 1080 - GUJARAT HIGH COURT
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... ... ..... weeks. The figures so arrived at are so unreasonable that it resulted into higher stock than the stock adopted by the AO. So far as the stock of sweets is concerned the Tribunal adopted sales more than the sales estimated by the AO and the stock of 'farsan' or 'namkin' had resulted into lower than what the assessee had shown. 14. For the foregoing facts which have been appreciated in their true perspective, we are of the view that the Tribunal has not correctly decided the issue raised before it and it requires reconsideration. We, therefore, set aside the order of the Tribunal and remand the matter to the Tribunal for reconsideration of the whole issue in light of the observations made by us in the foregoing paragraphs after giving an opportunity of being heard to the parties. 15. In the above view of the matter, the question posed before us, we answer accordingly and the appeal of the assessee is allowed to the aforesaid extent without any order as to costs.
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2008 (7) TMI 1079 - SUPREME COURT
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... ... ..... cial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The 'inscrutable face of the sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance. 10. The manner in which the appeal has been dismissed is not the proper course while dealing with the appeal when it raised substantial question of law. 11. Above being the position, we set aside the order of the High Court. The matter is remitted to it for fresh consideration in accordance with law. The parties are directed to place fresh evidence and materials before the High Court for the purpose of adjudication for disposing of First Appeal No. 836 of 2006. 12. The appeal is allowed but in the circumstances without any order as to costs.
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2008 (7) TMI 1078 - DELHI HIGH COURT
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... ... ..... , the entire search as well as the assessment proceedings consequent to such warrant were invalid and bad in law. In coming to this conclusion, the Tribunal has followed the decision of this Court in the case of Dr. Nalini Mahajan and Ors. v. Director of IT (Inv.) 2002 257 ITR 123 (Delhi) In that decision, this Court has, while construing the provisions of Section 132(1) of the said Act, arrived at the conclusion that the Addl. Director of IT (Inv.) cannot be said to have any power to issue any authorisation or warrant under the said provision. 2. Since the question which is sought to be raised in the present case stands covered by the decision of this Court in Dr. Nalini Mahajan (supra), this appeal does not call for any further consideration and has to be dismissed. It is ordered accordingly. 3. It is made clear that we have not examined the other issues inasmuch as they do not call for our consideration on the basis of the view taken above. 4. This appeal stands dismissed.
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