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1992 (4) TMI 263
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... ... ..... he victim, I am of the opinion that the applicant is not entitled to bail merely on account of proviso to Section 437(1), Cr.P.C. being a woman. It has been held that reasonable limitations in Section 437(1), Cr.P.C. which are founded on rule of prudence ought not to be ordinarily departed from by the High Court or the Court of Session except in special cases. (See AIR 1947 All 733 Kripashanker). In the present case, there are no special circumstances to give the benefit of the proviso to Section 437(1), Cr.P.C. to the accused applicant. 14. After considering the entire facts and the circumstances of the case, the gravity of the offence and the manner in which this heinous crime was committed by the accused applicant who is the mother-in-law and other family members, it is not a fit case in which the accused applicant deserves to be bailed out. 15. For what has been stated above, the bail application fails and is liable to be rejected. The bail application is hereby rejected.
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1992 (4) TMI 262
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... ... ..... rvice was against a cadre post or an ex-cadre post. The promotees included in the Select List of 1970, 1982 and 1984 against their quota vacancies have been given seniority from an earlier date when they started officiating in a Grade IV job. 18. this Court has nowhere used the expression "cadre post" or "ex-cadre post" in the judgment. Needless to say that these words are the alphabet of Service jurisprudence. In Narender Chadha's case it was legally impossible to make any distinction on the basis of cadre or ex-cadre posts. In any case if this Court intended to do so it would have done it in clear terms. The word 'post' has been used by this Court to indicate an appointment, a job or a position to which a person is appointed. 19. We, therefore, allow the appeals, set aside the judgment of the Tribunal and dismiss the applications filed by the respondents before the Tribunal. The writ petition is dismissed. There shall be no order as to costs.
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1992 (4) TMI 261
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... ... ..... dequacy of opportunities to the parties to let in evidence, oral and documentary, as respects the proof or otherwise of the existence or validity of the contract containing arbitration clause and other matters involving balance of convenience of parties and jurisdiction of foreign court or tribunal and arrive at a decision in the light of the principles evolved by various judicial pronouncements referred to above and other precedents, if any, that could be relied upon by the parties before him. In fine, the appeal is allowed; the order of learned single Judge is set aside and the case shall go back to him for fresh decision, after giving adequacy of opportunities to the parties to adduce evidence, oral and documentary and in the light of the principles evolved by judicial pronouncements as indicated in this judgment as well as some other precedents, if any, that may be relied upon by the parties before him. Costs of this appeal shall abide by the fresh result of the petition.
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1992 (4) TMI 260
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... ... ..... in the contract. Let us, therefore, see whether in the contract at hand anything different was provided. Shri Patnaik has made available to us xerox copies of the guarantee deeds executed by the petitioners. A perusal of the same shows that these deeds are supplemental to "Equitable Mortgage Deed" and the indenture in question contained, inter alia, the following term -- "1. If at any time default shall be made in the payment of the principal or interest or any other moneys for the time being due to the Corporation, upon the security of the said mortgage, the Guarantor(s) shall be liable to pay to the Corporation the whole of such principal and other moneys which shall then be due to the Corporation as aforesaid and..........." The above shows that the guarantees at hand in no way excepted the present contracts from the operation of Section 128 of the Contract Act. 15. In View of all the above, the petition is dismissed. K.C. Jagadeb Roy, J. 16. I agree.
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1992 (4) TMI 259
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... ... ..... ified under any provision of law then non-mention of the said provision in the order cannot invalidate the same. We are of the view that the appellate authority validly exercised its powers under Rules 23(1)(e) and 25(1)(f) of the rules. Mr. N.R. Nagaraja learned Counsel appearing for the respondent Khazan Singh stated that Rule 23(1)(e) would only be attracted if departmental inquiry was held by the disciplinary authority and since in this case no inquiry was held the Appellate Authority had no power under the said rule to remand the case. We do not agree. The powers under the rules are very wide enabling the Appellate Authority to do justice in a given case. No prejudice has been caused to Khazan Singh because the defence setup by him can only be examined in a regular enquiry. 7. We, therefore, allow the appeal, set aside the Judgment of the Central Administrative Tribunal dated March 20, 1991 and restore the order of the Appellate Authority dated April 25, 1990. No costs.
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1992 (4) TMI 258
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... ... ..... 2 and D.W. 1. P.W. 1 is an illiterate and uneducated lady. Though there are some inconsistencies in her evidence, by and large her evidence seems to be trustworthy. Similarly, P.W. 2 who was a minor at the time of death of his father, Purandas, deposed to the facts which were in his knowledge. The evidence of P.Ws. 1 and 2 is more reliable as against that of D.W. 1, whom we have already found to be not trustworthy in the earlier paragraphs of the judgment since it was contrary to pleadings and documentary evidence. 30. In the result, for the foregoing reasons, the decree and judgment under appeals are set aside and the plaintiffs are declared to be entitled to one-fifth share while the 9th defendant to one-fifth share in the one-fifth share of late Purandas in the joint family properties covered by plaint 'B' and 'C' schedules. A preliminary decree for partition shall accordingly follow. Both the appeals are, thus, allowed with the costs. 31. Appeals allowed.
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1992 (4) TMI 257
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... ... ..... jections against the said award. The respondent were served with the notice on July 8, 1991 for filing objections. They filed objections on August 28, 1991 i.e. after the expiry of the statutory period of 30 days. The said objections were not taken on record as the same were barred by time. The application moved by the respondent for condensation of delay was rejected by this Court vide order passed on a separate sheet. 9. In the circumstances stated above the impugned award dated December 7, 1990 made by Shri N. H. Chandwani is to be made a rule of the Court. 10. The award dated December 7, 1990 is hereby made a rule of the Court. Let a decree be passed in terms of the said award in favor of the petitioner. The petitioners shall be entitled to pendente lite (i.e. for the period the arbitration proceedings remained pending before the arbitrator) and future interest @ 14% per annum. The award Ex. YZ shall form a part of the decree. No orders as to costs. 11. Order accordingly.
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1992 (4) TMI 256
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... ... ..... s already been paid that amount shall be adjusted with the fine amount now imposed by us. "JUSTICE DEMANDS, THE COURT AWARDS" Before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistence and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms. We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand. The appeal is allowed accordingly.
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1992 (4) TMI 255
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... ... ..... the proposed detenu but he had gone pilgrimage to Gujarat. He was expected back on 10th November, 1991. Efforts were made on that day and subsequently again on 25th November, 1991 but on both the days, detenu was not available at his premises and his whereabouts could not be ascertained and on 27th November, 1991, the detenu surrendered himself to the Police. This being the position, we do not think that there is any undue delay in executing the order of detention. Delay ipso facto either in passing the order of detention or in executing the same will not vitiate the order unless it is shown that the grounds have become stale. See Abdul Salam @ Thiyyan v. Union of India & others, 1990CriLJ1502 . In the instant case, delay is explained and we do not think that there was unreasonable delay in arresting the detenu for the execution of the detention order. 17. In the result, both the petitions fail and are dismissed accordingly. The orders of detention are hereby confirmed.
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1992 (4) TMI 254
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... ... ..... that they had by their presence or otherwise facilitated the solemnisation of a second marriage with the knowledge that the earlier marriage was subsisting. The explanation of the first respondent that the second respondent has been functioning as a governess to look after his children in the absence of the mother who had left them implies that respondents Nos. 1 and 2 are living together. In this background, the allegations made against respondents 3 to 7 imputing them with guilty knowledge unsupported by other material would not justify the continuance of the proceedings against those respondents. In our view, the complaint before the learned magistrate is to be proceeded with against respondents Nos. 1 and 2 only. Accordingly, we allow the appeal to the extent of setting aside the impugned judgment so far as respondents Nos. 1 and 2 are concerned and restoring the complaint to be proceeded with as against these two respondents and to be disposed of in accordance with law.
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1992 (4) TMI 253
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... ... ..... tical Guide and that in the instant case the defendants were not merely referring to the marks on the Trade Mark Register but to marks of products which are in use as indicated in the said Guide. I see considerable force in Mr. Patel's submission. Prima facie, I am satisfied that several products containing Aspirin and having their trade marks with a suffix of 'Sprin' are in use. Moreover, the fact of such products marketed under such marks is not disputed. In these circumstances, I reject Mr. Tulzapurkar's submission. 16. In these circumstances, taking into consideration the factors to be considered and the surrounding circumstances, prima facie, it appears to me that the impugned mark is neither structurally nor phonetically or visually similar to 'Disprin' and that neither the products are same nor the packaging or mode of marketing the same are similar or likely to created confusion. 17. In the result, the notice of motion is dismissed with costs.
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1992 (4) TMI 252
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... ... ..... in which the lands of the petitioners are situated, and it was pointed out that there are only 13 or 14 houses out of which four are already acquired and the owners of only one or two houses have instituted proceedings against the Corporation. It is not possible to suggest to respondent No. 4 to reduce the premium in the case of the petitioners as it would lay down a wrong precedent and it would seriously hamper the working of respondent No. 4 of setting up new township. It is not possible to take a sympathetic view only in the case of the petitioners by compelling the respondent No. 4 to reduce the premium amount. In our judgment, the action of respondents 1 to 4 in proceeding with the acquisition does not suffer from any infirmity or violates any of the provisions of the law and consequently the petitioners are not entitled to any relief. 12. Accordingly, petition fails and rule is discharged with costs. Shri Pai applies for continuation of interim relief. Prayer refused.
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1992 (4) TMI 251
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... ... ..... urt directing the Income-tax Officer to make a fresh assessment was necessary in order to do complete justice between the parties"; and Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, AIR 1980 SC 1896, in which Krishna Iyer, J. observed as below in paragraph 146 - "Article 226, however, restrictive in practice, is a power wide enough, in all conscience, to be a friend in need when the summons comes in a crisis from a victim of injustice; and more importantly, this extraordinary reserve power is unsheathed to grant final relief without necessary recourse to a remand." These observations were made while holding that the power conferred on the Labour Court, Tribunal or National Tribunal under Section 11-A of the Industrial Disputes Act, 1947, to substitute a punishment, can be exercised by the High Court also, though Section 11-A in terms has not conferred such a power on the High Court. A.K. Padhi, J. 22. I agree. K.C. Jagadeb Roy, J. 23. I agree.
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1992 (4) TMI 250
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... ... ..... gers and hence taxable, the pleadings are insufficient for us to pronounce upon. When the view of the learned Judicial Commissioner in treating dumpers and shovels at par, has been upset in-so-far as dumpers are concerned, it is prudent that his view about shovels also is upset and the matter in Writ Petition No. 47/70 Civil Appeal No. 2982 of 1981 remitted back for reconsideration by the Panaji Bench of the High Court of Bombay. The High Court may in that event permit the parties to amend their pleadings and bring forth material to establish what exactly is the nature and function of a shovel and whether it is registerable under the Motor Vehicles Act and if so whether it is taxable under the Taxation Act. Civil Appeal No. 2982 of 1981 is thus allowed and the matter remitted back to the Panaji Bench of the High Court for redecision in the light of this decision and in accordance with law. The appellants shall have their costs in all the four appeals. T.N.A. Appeals allowed.
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1992 (4) TMI 249
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... ... ..... facie conclusion that the appellant -public sector undertaking does require this information for the purpose of fulfilling its obligations in the judgment in WA 1269 of 1990 of the Madras High Court. Therefore, even though no other main proceeding is pending before us, we are of the view that this Court is not powerless to issue appropriate directions to the first respondent -bank to furnish the information relating to the NRI account of the third respondent with its branch at Kollangode. For the aforesaid reasons, the Writ Appeal is allowed. The judgment of the learned single Judge is set aside. Ext. P4 letter dated 10 -9 -1991 of the first respondent is quashed and the first respondent is directed to issue orders to its branch office at Kollangode (second respondent) to furnish the details of the remittances made by the third respondent to the second respondent -branch during the period 1978 to 1984. In the circumstances, there will be no order as to costs. Appeal allowed.
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1992 (4) TMI 248
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... ... ..... TO cadres of Junior Electrical Engineers were existing as on 31.12.1985, but in our view it lies with the Board to decide as to how many posts of Junior Electrical Engineers are required to be filled to enable the Board to carry out its functions under the Act. Merely existence of vacancies alone is not sufficient until the Board considered it necessary as to how many posts were required to be filled in any year in order to carry out its functions and duties. There is no allegation that the posts were not released for appointment with any mala fide intention or in order to give benefit to any person by virtue of postponement of filling such vacancies. Thus, in our view the appellants of this case also would be governed by the same direction which has been given in the case of appeal arising out of SLP No. 3859 of 1991. Both the appeals are therefore dismissed in the manner indicated above. There will be no order as to costs in the circumstances of the case. Appeal dismissed.
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1992 (4) TMI 247
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... ... ..... does not the support of Section 62 (2) (h) is sterile. Seeking help from Section 27 would also be of no avail because the additional payment conceived of therein is also a payment over and above the duty leviable and as a part consideration towards the grant of any lease under Section 18. The additional consideration conceived of in Section 27 is a consideration over and above the excise duty. The way we have analysed Rule 22, the terms of Section 27 do not go to retrieve the situation. o p /o p For the aforesaid reasons, this appeal is allowed, the judgment and order of the High court of Madhya Pradesh is set aside, declaring Rule 22 to the extent it permits raising a demand, which in sum and substance is additional excise duty, without its being actually due; as ultra vires the Act and beyond the rule making power of the State. The demand raised against the appellant is therefore quashed. o p /o p The appellant shall have his costs. o p /o p T.N.A. Appeal allowed. o p /o p
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1992 (4) TMI 246
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... ... ..... t his counsel to file a special leave petition. The subsequent delay is only because he had to gather necessary particulars regarding calculation of interest get back the certified copy which had gone for execution purposes and the intervening vacation of this Court. 3. Taking all the circumstances into account, we are of the opinion that the delay in the filing of this special leave petition should be condoned subject to the petitioner paying costs of ₹ 5,000/- to the respondent. We direct accordingly. S.L.P. (C) 1222/92 4. Leave granted. 5. The civil appeal has to be allowed in view of the decision of this Court in Secretary, Irrigation Department v. G.C. Ray 1992 AIR SCW 389. In view of that decision we hold that the interest was rightly awarded by the Arbitrator. Therefore, the decree will be completely in terms of the award. The orders of the learned single Judge and the Division Bench are set aside. The civil appeal is allowed. There will be no order as to costs.
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1992 (4) TMI 245
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... ... ..... . 6. The powers conferred by the aforesaid rules can always be exercised by the Commissioner on the application of any of the parties, and, therefore, once an application has been moved on behalf of the petitioner, the Commissioner was required to take a decision whether to issue the directions sought for. It is, therefore, hereby provided that the Commissioner shall decide this application within four weeks from the date on which a copy of this order is produced before the Commissioner. Till such time as the orders are issued, or the application is otherwise disposed of by the Commissioner, the proceedings of assessment for the year 1987-88 shall not be finally determined. In case the assessment has already been made, the orders shall not be given effect till the aforesaid date of disposal of the petitioner's application. The petition is disposed of accordingly. Let a copy of the order be given to the petitioner's counsel within 24 hours on payment of usual charges.
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1992 (4) TMI 244
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... ... ..... nd a host of officers. There lies responsibility and duty on the Migistracy to find whether the concerned accused should be legally responsible for the offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case of harass them for vendetta. The appeal is accordingly allowed and the complaint is quashed. Appeal allowed.
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