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Indian Laws - Case Laws
Showing 21 to 40 of 89 Records
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2018 (8) TMI 2058 - SUPREME COURT
Time limitation for submission of caste validity certificate by elected councilor - mandatory in nature or not? - failure on the part of person elected as Councilor to produce the caste validity certificate within the period of six months from the date on which he was declared elected - validation of caste claim of elected Councilor by the Scrutiny Committee beyond the prescribed period would automatically result into termination of such Councilor with retrospective operation - HELD THAT:- Section 9A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 and Section 5B of the Maharashtra Municipal Corporations Act (Act No. 59 of 1949) require a member of the Scheduled Castes, Scheduled Tribes or other Backward Classes to enclose with the nomination for election his/her Caste Certificate issued by the Competent Authority and also the Validity Certificate issued by the Caste Scrutiny Committee - A proviso to the aforesaid main provision of the statute was brought in subsequently which permitted a candidate to file his/her nomination even in the absence of the validity certificate provided he/she encloses with the nomination a true copy of the application filed by him/her before the Scrutiny Committee and an undertaking that he/she shall submit, within a period of six months from the date of his/her election, the validity certificate issued by the Scrutiny Committee.
The High Court very rightly came to the aforesaid conclusion along with the further finding that equities in individual case(s) would not be a good ground to hold the provision to be directory. In fact, the High Court has supported its decision by weighty reasons to hold that reading the provisions to be directory would virtually amount to rendering the same to be negatory - Compounded is the fact that the proviso was deleted in the year 2008 and reintroduced in the year 2012. The same would go to show that sans the proviso the main provision would debar a candidate who does not possess a validity certificate from contesting the election as a reserved category candidate. If that is so the proviso has to be strictly construed and the deeming provision contained in the second proviso together with the plain language used can lead to only one conclusion, namely, that the legislative intent was to make the provision of the statute mandatory irrespective of individual hardships.
The High Court of Bombay was perfectly justified in coming to the impugned conclusion on the basis of the reasoning that was adopted, which is affirmed - SLP dismissed.
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2018 (8) TMI 2048 - TRIPURA HIGH COURT
Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - demand notice was properly served or not - HELD THAT:- This court finds that the ground on which the impugned judgment and order of acquittal has been structured is preposterous. Section 138(b) of the NI Act casts an obligation on the drawee of the cheque which is dishonoured that after receipt of the information he makes a demand for the payment of the said amount (the amount mentioned in the cheque) by giving a notice in writing to the drawer of the cheque within 30 days from the day of receipt of the information by him from the bank regarding the dishonour of the cheque for insufficiency of the fund etc.
The accused-respondent has sought to prove 'the payment' by aid of two chance witnesses and both of them came to the accused-respondent for purpose of taking money. One has claimed to receive ₹ 50,000/- and another has claimed to have ₹ 2,00,000/-. It appears that they are very close to each other and they are too in a close business relation. The accused-respondent did not care to show on the date of payment from which source he got such huge amount. Whether he had collected from private sources or it was taken out from his account in any bank. Even, there is no whisper in this respect.
The attempt to rebut the presumption, amenable to be drawn out what the complainant-appellant has proved is the foundation fact, is apparently very robust, but if the entire transaction is scrutinized with resilience it would surface that there is no reason that a prudent person should believe the opposite.
This Court has also noticed that the accused-respondent has acted sometimes in a manner which cannot be stated to be bona fide. Even in the Court, he has stated that he did not receive the notice but the record from the postal department has squarely established that notice was duly served. Even he did not make any attempt to bring someone from the postal department to demonstrate that the communication dated 23.02.2013 (Exhibit-B) is not based on delivery of the registered article. Even there is no infirmity in the admission of the communication received from the Postal Department. As such, this Court does not have any other alternative but to observe that the accused-respondent has grossly failed to rebut the presumption under Section 139 read with Section 138 of the NI Act.
The accused-respondent is liable to be convicted and is accordingly convicted under Section 138 of the NI Act - Appeal allowed.
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2018 (8) TMI 2041 - SUPREME COURT
Release of the acquired land from acquisition proceedings - whether the High Court was justified in allowing the writ petition filed by the landowners (VCHS-Respondent No. 1 herein) and, in consequence, was justified in issuing directions to the State in relation to the land in question? - Section 48 of the Land Acquisition Act, 1894 - HELD THAT:- Once it is held that the possession of the land in question was taken by the State in accordance with law on 30.05.2004 from the landowners, there are no hesitation in holding that the provisions of Section 48 of the Act were not applicable to the case at hand. In other words, once it is held that the possession of the acquired land was with the State, the land stood vested in the State disentitling the State to release the land from the acquisition proceedings by taking recourse to the provisions of Section 48 of the Act - A fortiori, the then Revenue Minister had no power to deal with the land in question in any manner whatsoever and nor had any power to invoke the provisions of Section 48 of the Act for release of the land in question from the clutches of the acquisition proceedings.
The then Revenue Minister, who passed the order dated 10.06.2004 had no power to deal with the matter relating to release of the land in question. He simply usurped the power Under Section 48 of the Act, which he never possessed. It was an abuse of exercise of power by him while dealing with the State's largesse - the filing of the writ petition by the landowners itself was an abuse of judicial process. It was for the simple reason that the earlier litigation, which travelled up to this Court thrice having ended against the landowners, it was binding on the parties. It prevented the landowners to again raise the same issue.
The High Court failed to examine the issues arising in the case in its correct perspective - Petition dismissed with costs quantified at ₹ 25,000/- to be payable by Respondent No. 1 to the Appellant.
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2018 (8) TMI 2022 - CALCUTTA HIGH COURT
Seeking declaration that they are not obliged to pay an amount under the term loan facility - Section 8 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- There is an apparent distinction between an order containing error apparent on the face of the record and the illegal and erroneous order. In former case, Court can exercise the review jurisdiction but in later case, the remedy lies by moving the Higher Forum. The scope under Section 8 of the said Act is very limited and limited to the extent of the cause of action pleaded in the suit in relation to the arbitration clause or agreement. If the subject dispute is covered by an arbitration agreement, it is imperative on the Court to refer the parties to arbitration instead of venturing to proceed to decide the suit on merit. If an express embargo is created under the statute, the Court cannot travel beyond it. The Court cannot pass such a direction which is not contemplated under Section 8 of the said Act and, therefore, the direction as sought for in the instant application is beyond the legal competence of the Court who was in seisin of the suit and was exercising jurisdiction within strict parameters of section 8 of the said Act. Mere granting a liberty to file a review application cannot be perceived to have conferred any right upon the litigant to have the order in his favour as the Court before hearing the review application has to decide the said application within the circumference of the provision applicable in this regard.
This Court does not find that the grounds taken for review comes within the periphery of Order XLVII Rule 1 of the Code of Civil Procedure and, therefore, the review application is liable to be dismissed.
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2018 (8) TMI 2020 - BOMBAY HIGH COURT
Dishonor of Cheque - repeated proceedings or not - petitioner submitted that the trial Court has committed an error in rejecting the application preferred by the petitioner - HELD THAT:- The Court had transferred the police case to the Court of Judicial Magistrate First Class at Pen and direction was given in the circumstances that both the cases be tried in the same Court. The order does not indicate that there should be a joint trial of both the cases. The said order was passed on 23rd January, 2014 and it was never contended earlier that there has to be joint trial. It is also pertinent to note that the procedure contemplated for the trial of the complaint under Section 138 of the Negotiable Instruments Act which is summons triable case is different from that of the procedure contemplated for the trial of the case initiated by the police for the offence under Section 420 of Indian Penal Code which is warrant triable case. It is also noted that the affidavit of evidence was tendered by the complainant in the complaint case under Section 138 of Negotiable Instrument Act on 20th February, 2014. Thereafter, the complainant preferred another application for additional documents by filing additional affidavit of evidence on 2nd August, 2014. The said applications were allowed by the trial Court on 1st November, 2014. The petitioner challenged the said orders in various courts and ultimately could not succeed in the said proceedings. It is also apparent in the meantime the examinationinchief of the complainant is also recorded partly in the case initiated under Section 420 of Indian Penal Code. The said examinationinchief was recorded on 5th July, 2014. Thus, it is evident that both the cases have proceeded separately and not as a joint trial. It is thereafter this application was preferred by the petitioner on 27th July, 2018 which was rejected by impugned order. It also appears that the case was expedited by the Hon'ble Supreme Court.
In the case under Negotiable Instrument Act, if a fine is imposed it is to be adjusted to meet the legal enforceable liability. There cannot be such a requirement in the offence under Indian Penal Code. The case under Negotiable Instruments Act can only be initiated by filing a complaint. However, in the case under Indian Penal Code such a condition is not necessary. There may be overlapping of the facts in both the cases but the ingredients of the offences are entirely different.
Petition dismissed.
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2018 (8) TMI 2018 - TIS HAZARI COURTS, DELHI
Dishonor of Cheque - enforceable debt or not - fine payable as compensation to the respondent company as per provisions of Section 143(1) (Provisio) of NI Act r/w Section 357(1)(3) of Cr.P.C - HELD THAT:- This court is of the considered opinion that three cheques in question, qua this matter, were issued by appellant in favour of respondent side towards legally enforeable debt, due to respondent side. In the further considered view of this court, Ld. Trial Court correctly appreciated the facts and circumstances of this case in the right perspective before coming to the conclusion that the appellant was liable for commission of offence under section 138 of NI Act. The appellant did not produce relevant/satisfactory evidence before Ld. Trial Court in support of the fact that he was not responsible towards respondent side for any amount of money qua this matter as per relevant provisions of NI Act.
There is no merit in this appeal so as to set aside or modify, to any extent, the impugned judgment of conviction and the same is hereby upheld - Appeal dismissed.
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2018 (8) TMI 2013 - KARNATAKA HIGH COURT
Principles of natural justice - Content of legal notice issued by petitioner - offence of defamation under Section 499 of IPC - allegation is that without considering any aspects, merely on the basis of a self serving statement of the complainant the learned Magistrate has issued summons to the petitioner to face trial for the alleged offences - HELD THAT:- The essence of Section 499 of IPC is the publication of imputations concerning any person with the intention to harm, knowing or having reason to believe that such imputations will harm the reputation of the person and they must be made or published to any person other than the person concerning to whom it is written or made - Publication has been explained by the Bombay High Court in the above decision cited by the learned counsel for the petitioner and it is stated therein What is publication? Making a defamatory matter known after it has been written to some person other than the person for whom it is written is a publication in its legal sense. A defamatory matter must, therefore, be communicated to some person other than the person concerning whom it is written. Communicating a defamatory matter to the person concerned only cannot be said to be a publication.
It is not the case of the complainant that the contents of the legal notice sent by the petitioner were published by him to any person other than the complainant. According to the complainant the notices were sent through post to his registered address. It has to be presumed that when a registered notice is sent to the last known address it is meant to be opened and read by the person concerned and not by any other person. In the absence of any allegation that such letters were in fact opened and read by the employees or any other persons other than the addressee, the complainant cannot contend that the petitioner had any intention to make a publication of the said contents of the notice to any outsiders. The complainant has not even examined any of his employees to show that the letter sent by the petitioner were opened by any of his employees and they had read the contents thereof - As a result, there was no communication or publication of the contents of the said notices/complaints within the meaning of Section 499 of IPC.
Contents of legal notice - HELD THAT:- Going by the assertions made by the complainant, the allegation made in the said notice that the petitioner was harbouring offender in whose name there is a case pending in Patna High Court is defamatory in nature. Of course, no material is produced before this Court or before the trial Court to show that the said statement is a false statement. Even assuming that the complainant was not harbouring any of the person, or any of his employee as alleged in the notice, yet in the absence of any material to show that the said statement was made with an intention to defame the petitioner, in my view the rigors of Section 499 do not get attracted - the averments made in the private complaint and the statements made in the sworn statement of the complainant do not make out the ingredient of the offence under Sections 499 and 500 of the Indian Penal Code in so far as the petitioner is concerned.
There is nothing in the impugned order to indicate that the learned Magistrate has conducted any enquiry as contemplated under Section 202 of the Cr.P.C. In any case, the complainant himself having failed to make out that the allegations contained in the legal notice issued by petitioner were defamatory in nature and that they were made/published with an intent to harm reputation of the complainant the prosecution of the petitioner is wholly illegal and cannot be sustained.
The continuation of the proceedings against the petitioner is an abuse of the process of law and therefore liable to be quashed - petition allowed.
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2018 (8) TMI 1987 - SUPREME COURT
Release of attached properties - diversion of funds - HELD THAT:- There was diversion of the funds, prima facie it is apparent that when the money was paid by the buyers for the purpose of investment in the particular project, it could not have been diverted. That would prima facie tantamount to a criminal breach of trust. We are not expressing any final opinion in this regard at this moment. However, at the same time, we propose to take a call on this after hearing the parties on this aspect. However, so as to further ascertain the extent of internal and external diversion from all the projects. The names of all the Chartered Accountants of all the aforesaid 40 companies be disclosed to us and their reports from 2008 till today be placed on record by tomorrow.
The individual Bank accounts of the Directors of all the 40 companies are also freezed and they shall not be entitled to operate the same with immediate effect. Let details of all Bank accounts be furnished by tomorrow of companies and their Directors and of personal accounts of Directors. The properties in the individual names of the Directors are also attached and the same shall not be disposed of or alienated in any manner without express order of this Court.
Let the matter be listed tomorrow, i.e., on 2.8.2018 at 2.00 p.m.
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2018 (8) TMI 1985 - DELHI HIGH COURT
Smuggling - offences contemplated by Sections 21(c) and 23(c), read with Section 28 of the Act - inconsistencies in the testimonies of the various witnesses who deposed regarding the seizure effected - HELD THAT:- Once the test reports, using the Field Testing Kit of the NCB team, and as provided by the CRCL, are discarded from consideration, the only evidence, to indicate that the parcel booked at Student Infoline Courier contained heroin, was the statement, of the appellant, recorded under Section 67 of the Act. The statement of Umesh Madan only proved the fact of booking, by the appellant, of the parcel at Student Infoline Courier and its subsequent booking, by Umesh Madan, at Aramex. It did not throw any light on the contents of the parcel. True, in response to a leading question, put to him, during the recording of his statement, under Section 67 of the Act, on 17 th April, 2012, the appellant did state that he had booked a parcel, containing heroin, at Student Infoline Courier in April 2011, the fact of the parcel containing heroin figured only in the suggestion contained in the leading question put to him in that regard. That apart, the said statement was retracted, by the appellant, by way of a written retraction, placed in the file of the case relating to the recovery of 410 g heroin from the appellant, as recorded by the learned Special Judge in the statement, of the appellant, under Section 313 of the Cr PC on 18th February, 2014.
The statement of the appellant, under Section 67 of the Act, having been recorded in the office of the NCB, and having been retracted by the appellant subsequently, it cannot be safely said that the statement was voluntary, especially in respect of an entirely different consignment, being investigated in an altogether different case. In the absence of any other corroborative evidence, I am not convinced that a case of attempt to export heroin from India, can be said to have been made out against the appellant, solely on the basis of his statement under Section 67 of the Act.
The prosecution has not been able to prove, conclusively, that the appellant had attempted to export heroin, and that he had, therefore, committed the offences contemplated by Section 21(c), 23(c) and 28 of the Narcotics, Drugs and Psychotropic Substances Act, 1985 - appellant is, accordingly, acquitted of the said charges, and shall be released forthwith, unless required to be detained in any other case - Appeal allowed.
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2018 (8) TMI 1983 - SUPREME COURT
Maintainability of appeal - Decree of Divorce - Whether the dismissal of the appeal relates back to the date of filing of the application for withdrawal? - Whether the marriage dated 06.12.2011 between the Appellant and the Respondent during the pendency of the appeal against the decree of divorce is void?
HELD THAT:- What is held in essence is that if a provision of law prescribes an incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity. Quae incapacity imposed by statute, there is no difference between an incapacity imposed by negative language such as "it shall not be lawful" or an incapacity imposed by positive language like "it shall be lawful (in certain conditions, in the absence of which it is impliedly unlawful)". It would thus appear that the law is already settled by this Court that a marriage contracted during a prescribed period will not be void because it was contracted under an incapacity. Obviously, this would have no bearing on the other conditions of a valid marriage.
In the present case we are satisfied that the Appellant's marriage was not subsisting when he married again. He had filed an application for withdrawal of his appeal against the decree for dissolution and had done nothing to contradict his intention to accept the decree of dissolution.
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2018 (8) TMI 1924 - SUPREME COURT
Grant of Bail - HELD THAT:- The observations are made by the High Court in the impugned order keeping in mind as to whether the respondent was entitled to bail or not and such observations shall not influence any other proceedings and all other proceedings shall be dealt with on its own merits - Application disposed off.
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2018 (8) TMI 1921 - RAJASTHAN HIGH COURT
Recruitment on the post of LDC in pursuance of advertisement of the year 2013 - limited argument made by learned counsel for the petitioner is that the petitioner’s candidature should be considered as having qualified the computer qualification as he was having Degree with one of the subject of Computer Application - HELD THAT:- This Court is of the opinion that the law laid down by this Court in SHIVOM GUPTA VERSUS STATE OF RAJ AND ANR [2017 (5) TMI 1711 - RAJASTHAN HIGH COURT] clearly indicate that a person having qualification of Computer Application in graduation shall be entitled to be considered as qualified for the computer qualification or any Diploma or Computer Operator & Programming Assistant (COPA) or Data Preparation and Computer Software (DPCS).
The respondents are directed to consider candidature of the petitioner for appointment on the post of LDC in pursuance of advertisement of the year 2013 while treating him to be having a valid qualification of Computer Application obtained in Graduation and provide him appointment on the post of LDC if he is otherwise eligible and meritorious within a period of 60 days from today - Petition allowed.
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2018 (8) TMI 1913 - GUJARAT HIGH COURT
Auction - sale to highest bidder - Permission to carry out the formalities for disposal of the immovable properties of the Company in liquidation - HELD THAT:- Considering the highest offer from M/s. Recycling Solutions Pvt. Ltd. Panoli, through Mr.Viral K. Shah, learned advocate, which is proper and adequate, the same deserves to be accepted as sale consideration of immovable property being property of Lot No.I i.e. “Leasehold land admeasuring about 25,912 sq.mtrs., being Plot No.208/2, G.I.D.C, Panoli, Ankleshwar”, originally belonging to the Company (in liquidation) and the same be sold in favour of M/s. Recycling Solutions Pvt. Ltd., Panoli, as per the conditions mentioned in the advertisement - M/s. Recycling Solutions Pvt. Ltd. Panoli, being the highest bidder, shall deposit remaining amount of ₹ 7,88,00,000/- (Sale consideration of ₹ 8.37 Crores - ₹ 49,00,000/- received as EMD) within the time prescribed as per the terms and conditions. Thus, the sale is confirmed by accepting the bid of M/s. Recycling Solutions Pvt. Ltd., Panoli, being the highest bidder.
On receipt of total sale consideration from M/s. Recycling Solutions Pvt. Ltd., Panoli, the Official Liquidator shall give physical and actual possession of the immovable properties of the Company (in liquidation) i.e. Leasehold land admeasuring about 25,912 sq.mtrs., being Plot No.208/2, G.I.D.C, Panoli, Ankleshwar to it and thereafter shall undertake the exercise of executing a sale deed in favour of M/s. Recycling Solutions Pvt. Ltd., Panoli.
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2018 (8) TMI 1912 - DELHI HIGH COURT
Grant of Bail - petitioner contends that the petitioner has been in custody for nearly ten months now since 29th September, 2017 and is no more required for investigation - professional misconduct - HELD THAT:- It is evident that despite the fact that the original documents of the property, that is, Plot No. 752, Udyog Vihar, Phase-V, Gurugram, Haryana were mortgaged with the bank, the petitioner continued to represent that the documents were in his possession thereby induced him to part with the payment as noted above. For securing the loan on the strength of the original documents of the property in question the petitioner forged several documents - However, considering the fact that the petitioner has been in custody for the last ten months now and one of the co-accused is yet to be arrested, the evidence is primarily documentary in nature and the trial is likely to take some time, this Court deems it fit to grant bail to the petitioner.
The petitioner is directed to be released on bail on his furnishing a personal bond in the sum of ₹1 lakh with one surety bond of the like amount subject to the satisfaction of the learned Trial Court further subject to the condition that he will not leave the country without the prior permission of the Court concerned and in case of change of address will intimate the same to the Court concerned by way of an affidavit - petition disposed off.
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2018 (8) TMI 1910 - SUPREME COURT
Insurance claim - claim taken on re-instatement basis - rejection of grant of claim on the ground that insurer has failed to comply with the mandate of Clause 6 of the general conditions of the policy - whether the respondent (insurer) had waived the condition relating to delay in intimation by appointing a surveyor?
HELD THAT:- It is well established position that waiver is an intentional relinquishment of a right. It must involve conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. It is an agreement not to assert a right. To invoke the principle of waiver, the person who is said to have waived must be fully informed as to his rights and with full knowledge about the same, he intentionally abandons them.
The appointment of a surveyor by the respondent after receipt of intimation of the loss from the appellant, in the context of the present insurance policy, coupled with the 2000 Regulations and in particular an express stand taken in the repudiation letter dated 18th February, 2005 sent by the respondent to the appellant after consideration of the surveyor‟s report, it cannot be construed to be a case of waiver on the part of the respondent - The fact remains that the respondent had appointed a surveyor to enquire into the entire matter and submit its report. The surveyor expressly recommended that the claim was not payable on account of the infringement of Clause 6 of the general conditions of the policy.
The conclusion of the Commission that the respondent (insurer) had not waived the condition relating to delay stipulated in Clause 6 of the general conditions of the policy, by appointing a surveyor is upheld - appeal dismissed.
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2018 (8) TMI 1888 - BOMBAY HIGH COURT
Service of order - Ex-parte order - want of proper service on the defendant in the suit - HELD THAT:- The court should be satisfied that either the defendant is deliberately avoiding the service, so the order of substituted service can be passed or if the Court is satisfied that for any other reason, the summons cannot be served in ordinary way, then the order of substituted service can be granted.
On the point of setting aside of ex-parte decree, the Hon'ble Supreme Court, in the case of INTERNATIONAL WOOLEN MILLS VERSUS STANDARD WOOL (U.K.) LTD. [2001 (12) TMI 864 - SUPREME COURT], has held that it is possible even though the defendant has not entered evidence, the plaintiff may prove its case through oral and documentary evidence. If after consideration of oral and/or documentary evidence, an ex parte decree is passed, it would be a decree on merits.
The Court can also go for service of publication and once it is published, then sub-rule (2) of Rule 20 will be attracted, which states the effect of substituted service, i.e., substituted service by order of Court shall be effectual as if it was made on the defendant personally. Thus, it lays down the deeming fiction. However, the plaintiff can ask for substituted service after complying with the requirement of Order 5 Rule 17 of the Code of Civil Procedure. If a person refuses to give the acknowledgment and if at all with all due and reasonable diligence, the defendant is not found, then it is mandatory on the service officer to affix the copy of the summons on the outer door or some other conspicuous part of the house where the defendant ordinarily resides.
Ex-parte order st aside - the suit is restored to its original file - petition dismissed.
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2018 (8) TMI 1854 - RAJASTHAN HIGH COURT
Attachment of property - non-compliance of principles of natural justice as well as non-compliance of the provisions contained under the Benami Transaction (Prohibition) Act, 1988 - service of notice - application of mind relating to the order of approval - HELD THAT:- This Court finds that it would not be appropriate for this Court at this stage to examine the veracity and legality of the notice of attachment issued way back as on 22/12/2017 as of now as the matter is already pending before the adjudicating authority. However, all the objections, which the petitioner has raised before this Court, can be taken up by him before the adjudicating authority and it would be for the adjudicating authority to decide and examine all the objections and pass a reasoned order.
Petition disposed off.
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2018 (8) TMI 1841 - CALCUTTA HIGH COURT
Whether it was expedient in the interest of justice that an enquiry should be made into an offence which may come within Clause (b) of sub-section 1 of Section 195 of the 1973 Code? - HELD THAT:- The decision of the Supreme Court in the case of PRITISH VERSUS. STATE OF MAHARASHTRA & ORS. [ 2001 (11) TMI 1017 - SUPREME COURT ] lays down in substance that principle of natural justice is not breached in the event the Court does not give opportunity of hearing to a proposed accused person at the time of formation of opinion as contemplated in Section 340 of the 1973 Code. But in an appropriate case in my opinion the Court can choose to hear the accused at the stage of formation of opinion itself and that would not be in violation of the provisions of the Code.
The power or jurisdiction of the Court has not been curtailed in Section 340 of the 1973 Code. The authorities cited by Mr. Khosla lay down that the proposed accused has no right to be heard at the initial stage of proceeding under Section 340 of the 1973 Code. But that principle cannot be stretched to mean that Court is barred from hearing them at all at the stage of formation of opinion under the aforesaid provision. I do not find any error apparent on the face of the record or any other ground which would warrant review of my order passed on 18th April, 2017.
Petition dismissed.
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2018 (8) TMI 1823 - SUPREME COURT
Validity of Circular dated 1st August, 2017 - conduct of elections for the Council of States - availability of the option “None of the Above” (NOTA) - HELD THAT:- It can be said without a speck of doubt that the decision taken by the Election Commission as regards the introduction of NOTA in the election of the members to the Council of States also runs counter to what has been stated hereinabove. NOTA will destroy the concept of value of a vote and representation and encourage defection that shall open the doors for corruption which is a malignant disorder. It has to be remembered that democracy garners its strength from the citizenry trust which is sustained only on the foundational pillars of purity, integrity, probity and rectitude and such stronghold can be maintained only by ensuring that the process of elections remains unsullied and unpolluted so that the citadel of democracy stands tall as an impregnable bulwark against unscrupulous forces.
The introduction of NOTA in indirect elections may on a first glance tempt the intellect but on a keen scrutiny, it falls to the ground, for it completely ignores the role of an elector in such an election and fully destroys the democratic value. It may be stated with profit that the idea may look attractive but its practical application defeats the fairness ingrained in an indirect election. More so where the elector‘s vote has value and the value of the vote is transferrable.
The circulars issued by the Election Commission, the first respondent herein, introducing NOTA in respect of elections to the Council of States are hereby quashed - petition allowed.
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2018 (8) TMI 1789 - SUPREME COURT
Right to be represented before the Redressal Committee through a lawyer - Whether lawyers can represent their clients in the fact scenario in the present case is sub judice in the Supreme Court, some intermediate course of conduct should have been followed instead of dismissing the petition?
Held that:- The very Bombay High Court judgment referred to itself states that a professional lawyer may represent the petitioner, and not merely an employee of the company, provided he does not take more than a day to submit his arguments - We have also been informed that at present the Bombay view is opposite of the Delhi and Punjab and Haryana views.
In the interest of justice, what has been done by the Bombay High Court in the order referred to, as well in STATE BANK OF INDIA AND ANR VERSUS KINGFISHER AIRLINES LTD AND ORS [2015 (12) TMI 1471 - SUPREME COURT OF INDIA] we allow a professional lawyer to appear on behalf of the petitioner and allow him to present an oral argument, which shall not last beyond one day - the matter is fixed for hearing on 31.08.2018.
SLP disposed off.
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