FACTS:

The plaintiff instituted the suit to restrain the defendants, Pradeep Jain and Silver Glades Holdings Pvt. Ltd. from using the mark, “LABURNUM”, “THE LABURNUM”, “LABURNUM 2” or the device or any other mark or device containing the word “LABURNUM” and for ancillary reliefs.

ISSUES:

1.  Whether the plaintiff has exclusive rights over the trademark LABURNUM?

2.  Whether the defendants are infringing the trademark laburnum?

3. Whether the project LABURNUM was developed and promoted jointly by the plaintiff and defendant No.1?

4. Whether the factual representation of the association of defendant No.1 with the LABURNUM project results in violation of any alleged rights of the plaintiff?

5.  Whether the plaint is liable to be rejected on the ground that the plaintiff has suppressed and concealed the material facts?

6.  Whether the plaintiff is entitled to damages for a sum of Rs.10 lakh as damages on account of loss of sales, business and reputation?

7.   Whether plaintiff is entitled to relief claimed?

CONTENTIONS:

By plaintiff:

• That the defendants had shown “THE LABURNUM”, project of the plaintiff, as one of the completed projects of the defendants in their brochure along with pictorial representation and device of “LABURNUM”.
• That defendant had shown the “LABURNUM” with the device of “LABURNUM” on their website.
• That the plaintiff has no right to restrain the defendant from claiming his provenance qua the Laburnum project of the plaintiff.
• That the defendant no.1 was only the Managing Director of the plaintiff who developed the Laburnum project and was not the co-promoter.

By defendants:

• That the defendants never used / do not intend to use “LABURNUM” as a trade mark; that the defendant no.1 (Pradeep Jain) was a co-promoter of the plaintiff, of the project of construction of residences in the name of “LABURNUM” which D1 was carrying on business in the name and style of defendant no.2 (Silver Glades Holdings Pvt. Ltd.) and while carrying out the said business, called himself “LABURNUM MAN”.
• That defendants showed “LABURNUM” on their website because the said project was co-promoted by the D2 with ITC Ltd.
• That initially the D1 held 70% shares in the plaintiff, which were subsequently reduced to 50% and yet subsequently to 30% and ultimately to nil (which was confirmed by Plaintiff’s director).
• That the D1 was agreeable to not using the name / mark “LABURNUM” as in the brochure, under the heading “Silverglades Leadership” state “Mr. Jain / Mr. Pradeep Jain was a co-promoter along with ITC Ltd. of the project “The Laburnum” of Landbase India Ltd.
• That the defendants will not make any claim other than as aforesaid on their website and other advertisements or otherwise.
• ·That D2 will not claim to have any connection with the Laburnum project.

OBSERVATIONS: The Court observed that:-

• Acc to sec 29 of the Trademarks Act, 1999 making people believe about the association with the registered trademark company amounts to infringement of trademark.
• The plaintiff cannot take objection to the D1, as distinct from D2, claiming himself to be the co-promoter of the plaintiff who developed the Laburnum project as D1 held 70% shares in the plaintiff, which were subsequently reduced to 50% and yet subsequently to 30% and ultimately to nil.
• Passing decree in favour of plaintiff solves the issues no.(i) to (v) and stand decided.
• It was not deemed necessary to keep the suit pending for adjudication of the claim for damages only as the counsel for the plaintiff states that the plaintiff would not press for damages if the defendants agree to token amount of damages to which defendants denied.

HELD: The courts passed a decree for permanent injunction in favour of the plaintiff and against the defendants. The defendants were directed to carry out the changes within 48 hours on their website and otherwise. The parties were left to bear their own costs.

For full judgement refer:

[embeddoc url=”http://lobis.nic.in/ddir/dhc/RSE/judgement/31-08-2019/RSE29082019SC9222016.pdf” download=”all”]

The post Delhi HC: Making people believe about the association with registered trademark company in any manner amounts to infringement appeared first on Legal Desire Media and Insights.

FACTS:

The Municipal Corporation of Delhi in interest of the respondent issued tenders vide public notice for allotment of car scooter parking/ shops/ kiosk/ stalls/ dhabas/ office units on “as is where is” basis. The petitioner had also applied against tender and being successful was accordingly offered a shop in Karol Bagh. Pursuant thereto a license deed was executed for a period of 5 years at monthly license fee of `Rs.53,020/-. The license of the petitioner was renewed vide a duly executed license fee for another period of five years upon 100% enhancement of the monthly license fee fixed thereafter at `Rs.1,60,040/-. Vide order dated January Rs.28, 2009, the license of the petitioner in respect of the shop was cancelled and she was directed to vacate the subject shop and clear the outstanding dues of `Rs.79,85,994/- payable for the period between 2005 till 2009.

She made a request to the respondent to withdraw the notice but no action was taken. Respondent had initiated proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (‘P.P. Act’) which was decided by the Estate Officer directing the eviction. This decision was challenged in an appeal before the District Judge and the learned District Judge upheld the order of the Estate Officer which resulted in the writ petition before the High Court.

The Coordinate Bench of the court dismissed the writ petition which was challenged before the Division Bench. The petitioner had also filed another writ petition which was also dismissed by the learned Single Judge which was also challenged before the Division Bench where both the appeals were rejected, but had noted the submissions made by the counsels including the counsel appearing for the petitioner herein that their case may be considered in terms of circular.

LEGAL ISSUE:

·        Validity of the circular issued by the MCD.

·        Conditions required to be fulfilled to become a valid licensee.

CONTENTIONS:

By appellant:

·        Respondent failed to consider the representation(s) in proper perspective as the case of the petitioner was covered by the circular as the petitioner was a licensee of the subject shop since the year 1997 and has further paid total license fee of approximately `Rs.2.10 Crores from the year 2003 till 2018 when the shop was sealed.

·        The circular was clear and categorical inasmuch as the same provides for extension of license of five years each followed by respective enhancement of license fee.

·        Respondent arbitrarily rejected the representations.

·        Respondent arbitrarily and unreasonably raised the demand of `Rs.7,29,01,924/- while overlooking the payments made by the petitioner till date.

·        An amount of `Rs.1,32,87,268/- was due and payable by the petitioner to the respondent and the petitioner was ready and willing to pay the same immediately but wasn’t paid as the respondent hadn’t come forward for reconciling the account in order to arrive at the actual and accurate amount.

·        The petitioner vacated the shop was also untenable which goes contrary to the spirit and directions given by the Division Bench in its order.

·        The petition should be allowed as the action of the respondent being contrary to the letter and spirit of the order passed by the Division Bench and the petitioner was ready and willing to pay the balance amount of `Rs.1,32,87,268/-.

By respondent:

·        The directions of the Division Bench in the appeals were very clear that the representation (s) of the petitioner had to be considered in accordance with the rules and policies of the respondent.

·        The directions of the Division Bench cannot have the effect of reviving the license that too when license fee was not paid

·        The petitioner who was seeking conversion of the property on lease basis cannot take advantage of her own wrongs by resisting the challenge to the eviction and now when the petitioner was evicted, seeking her re-entry in the property only on the ground that the directions were given by the Division Bench for consideration of the representations.

·        The petitioner failed to pay a substantial amount of license fee amounting to `Rs.7,01,74,820/- she cannot now seek re-entry in the property.

OBSERVATIONS: The court observed that:

·        The respondent was justified in contending that the possession of the shop in question was taken over by them while rejecting the representations.

·        If the shop being vacant, respondent was justified in considering the factum of the shop being vacant while rejecting the representation (s). The decision was in conformity with policy of the respondent.

·        It wasn’t the case of the petitioner that she paid the complete amount to the respondent. In fact, the petitioner was litigating with the respondent on the ground that the property in question needed to be converted as a leasehold property.

·        A general policy was adopted by the Municipal Corporation in the circular that the occupants on that date may continue as a licensee provided they clear all dues up to date with a further rider that there would be enhancement of license fee in every five years to the tune of 50%. Despite directions, petitioner not paid license fee and other dues.

HELD:

The court held that the impugned judgement couldn’t be said to be arbitrary, illegal or perverse. Therefore, court dismissed the petition.

For full judgement refer:

http://lobis.nic.in/ddir/dhc/VKR/judgement/15-07-2019/VKR15072019CW48992019.pdf

The post Delhi HC: Court cannot substitute the opinion of the executive authority with its own when the decision is in accordance with policy appeared first on Legal Desire Media and Insights.

The founder director of the CBI was Shri D.P. Kohli who held office from 1st April, 1963 to 31st May, 1968. Before this, he was Inspector-General of Police of the Special Police Establishment from 1955 to 1963. Before that he held responsible positions in police in Madhya Bharat, Uttar Pradesh and Govt. of India. He was Police Chief in Madhya Bharat before joining the SPE. Shri Kohli was awarded ‘Padma Bhushan’ in 1967 for his distinguished services. He nurtured the organisation during his long stint as Inspector General and as Director and laid the solid foundation on which the organisation grew over the decades to become what it is today.

Composition of CBI

The CBI is headed by a Director. He is assisted by a Special Director or an Additional Director. Additionally, it has a number of joint directors, deputy inspector generals, superintendents of police and all other usual ranks of police personnel.

The Director of CBI as Inspector-General of Police, Delhi Special Police Establishment, is responsible for the administration of the organization. With the enactment of CVC Act, 2003, the superintendence of Delhi Special Police Establishment vests with the Central Government save investigations of offences under the Prevention of Corruption Act, 1988, in which, the superintendence vests with the Central Vigilance Commission.

The Director of CBI has been provided security of two-year tenure in office by the CVC Act, 2003 (Vineet Narain Case). The CVC Act also provides the mechanism for the selection of the Director of CBI and other officers of the rank of SP and above in the CBI.

The Director of the CBI is appointed by the Central Government on the recommendation of a committee consisting of the Central Vigilance Commissioner as Chairperson, the Vigilance Commissioners, the Secretary to the Government of India in-charge of the Ministry of Home Affairs and the Secretary (Coordination and Public Grievances) in the Cabinet Secretariat.

Organization of CBI

At present (2013), the CBI has the following divisions:

1.      Anti-Corruption Division

2.      Economic Offences Division

3.      Special Crimes Division

4.      Policy and International Police Cooperation Division

5.      Administration Division

6.      Directorate of Prosecution

7.      Central Forensic Science Laboratory

History

The Central Bureau of Investigation traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the Government of India.

The functions of the SPE then were to investigate cases of bribery and corruption in transactions with the War & Supply Deptt. of India during World War II.

Superintendence of the S.P.E. was vested with the War Department. Even after the end of the War, the need for a Central Government agency to investigate cases of bribery and corruption by Central Government employees was felt. The Delhi Special Police Establishment Act was therefore brought into force in 1946. This Act transferred the superintendence of the SPE to the Home Department and its functions were enlarged to cover all departments of the Govt. of India. The jurisdiction of the SPE extended to all the Union Territories and could be extended also to the States with the consent of the State Government concerned. Initially, under section 4 of DSPE Act, 1946 the administration of the Delhi Special Police Establishment was governed by the provisions of which contemplated the following:

(1) The superintendence of the Delhi Special Police Establishment shall vest in the Central Government.

(2) The administration of the said police establishment shall vest in an officer appointed in this behalf by the Central Government who shall exercise in respect of that police establishment such of the powers exercisable by an Inspector General of Police in respect of the police force in a State, as the Central Government may specify in this behalf.”

The Central Bureau of Investigation was established on 1.4.1963 vide Government of India’s Resolution No, 4/31/61- T/MHA (Home Ministry). Initially the offences that were notified by the Central Government related only to corruption by Central Govt. servants. In due course, with the setting up of a large number of public sector undertakings, the employees of these undertakings were also brought under CBI purview. Similarly, with the nationalisation of the banks in 1969, the Public Sector Banks and their employees also came within the ambit of the CBI.

From 1965 onwards, the CBI has also been entrusted with the investigation of Economic Offences and important conventional crimes such as murders, kidnapping, terrorist crimes, etc., on a selective basis.

The SPE initially had two Wings. They were the General Offences Wing (GOW) and Economic Offences Wing (EOW). The GOW dealt with cases of bribery and corruption involving the employees of Central Government and Public Sector Undertakings. The EOW dealt with cases of violation of various economic/fiscal laws. Under this set-up, the GOW had at least one Branch in each State and the EOW in the four metropolitan cities, i.e, Delhi, Madras, Bombay and Calcutta. These EOW Branches dealt with offences reported from the Regions, i.e, each Branch had jurisdiction over several States.

It was decided in 1987 to constitute three Investigation Divisions, namely, Anti-Corruption Division, Special Crimes Division and Economic Offences Division were created under CBI to reduce the increased workload as the CBI, over the years, established a reputation for impartiality and competence, demands were made on it to take up investigation of more cases of conventional crime such as murder, kidnapping, terrorist crime, etc. Apart from this, even the Supreme Court and the various High Courts of the country also started entrusting such cases for investigation to the CBI on petitions filed by aggrieved parties.

Till 1985 the CBI was under the Department of Personnel and Administrative Reforms in the Home Ministry. And, in 1985 a full-fledged ministry was created with the name Ministry of Personnel, Public Grievances and Pensions with three separate departments under it:

1. Department of Personnel and Training (DOPT) (this also includes recruitment of officers through UPSC and SPSC)
2. Department of Administrative Reforms and Public Grievances
3. Department of Pensions and Pensioners’ Welfare

Hence DOPT supervises and controls the following organizations, namely:

1. Union Public Service Commission (supervises)
2. Staff Selection Commission
3. Public Enterprises Selection Board
4. Lal Bahadur Shastri National Academy of Administration
5. Institute of Secretariat Training and Management
6. Central Vigilance Commission (supervises)
7. Central Bureau of Investigation
8. Indian Institute of Public Administration
9. Central Information Commission

Therefore, now CBI is under the jurisdiction of the Ministry of Personnel, Public Grievances and Pensions, which is headed by the Prime Minister of India.

Functions of CBI

1.      Investigating cases of corruption, bribery and misconduct of Central government employees

2.      Investigating cases relating to infringement of fiscal and economic laws, that is, breach of laws concerning export and import control, customs and central excise, income tax, foreign exchange regulations and so on. However, such cases are taken up either in consultation with or at the request of the department concerned.

3.      Investigating serious crimes, having national and international ramifications, committed by organized gangs of professional criminals.

4.      Coordinating the activities of the anti-corruption agencies and the various state police forces.

5.      Taking up, on the request of a state government, any case of public importance for investigation.

6.      Maintaining crime statistics and disseminating criminal information.

The post Read to Know: History and Establishment of CBI appeared first on Legal Desire Media and Insights.

Judiciary is one of the most important organ as it focuses on imparting justice and proper functioning of the country with population of about 1 million. Judiciary makes sure that everything is working according to the constitution of India. Its main function is to declare the law i.e., Jus Dicere not to make the laws i.e., Jus Dare. There is an integrated judiciary in India. The courts are divided into three categories with top court, middle court and lower court. The top court is named as the Supreme Court, while the middle court is named as High Court, and the lower court is named as District Court. In this article, we’ll understand the procedure as to how judges are promoted from Lower Court to Higher Courts 

How judges are promoted?

In all the states, the promotion guidelines are mentioned in the Rules made by the Governor (in case of states) or by the President (in case of union territories) in exercise of the powers conferred by the Constitution. In some states like Chhattisgarh, Madhya Pradesh, New Delhi and Uttar Pradesh, there are two different rules, one to deal with higher judiciary [district judges office] and the other meant for the lower judiciary [civil judges (junior division) office and senior civil judges office]. In other states, there is single Rule to deal with all the offices of judicial officers.

In all the states, the post of civil judges (junior division) is filled by direct recruitment. The civil judges (junior division) are promoted as senior civil judges usually based on the principle of merit cum seniority (or seniority cum merit) but sometimes, the promotions are also made on the principle of merit (in Maharashtra). The senior civil judges are promoted as district judges. Apart from this, the district judges are also directly recruited through a competitive examination. There are two ways of promotion:- regular promotion and accelerated promotion.

·         Regular promotion is the promotion where the judicial officers are promoted based on the principle of ‘seniority cum merit’.

·         When the judicial officers are promoted based on the principle of ‘merit’, it is called accelerated promotion.

·     Direct recruitment means where the posts are filled by way of direct appointment and not through in-office promotion.

All the states have three modes of appointment to the office of district judges- regular promotion, accelerated promotion and direct recruitment and the breakup of the vacancy is usually 65%, 10% and 25% respectively.

The promotion of judges mainly revolves around the following;

·         Eligibility Conditions

·         Criteria of Promotion

·         Criteria for Assessment of Work Done/ Norms

1. Eligibility conditions:

Eligibility for promotion means a minimum number of years in the service in general to be considered for a promotion.

·         Promotion as Senior Civil Judge: 5 years usually.

·         Regular promotion as District Judge: Usually, there is no requirement of a minimum number of years of service. But, some states have prescribed a minimum number of years of service in the feeder office.

·         Accelerated Promotion as District Judge: Usually 5 years.

2. Criteria of promotion:

The “criteria of promotion” refers to those tangible parameters which are employed to implement principles.

The most common criteria for promotion of a judicial officer to the office of senior civil judge follows;

 Evaluation of Judgments

·         Evaluation of Annual Confidential Reports (ACRs)

·         Disposal Record

·         Character/Integrity

·         Departmental Proceeding/Enquiry

·         Vigilance report

The most common criteria for regular promotion to the office of district judges are:

·         Suitability test

·         ACRs

·         Judgments

·         Disposal Records

·         Character/Integrity

·         Pending Departmental Proceedings/Enquiry

·         Vigilance report

The most common criteria of accelerated promotion to the office of district judges are:

·         Limited departmental competitive examination

·         Viva voice

·         Evaluation of judgments

·         Evaluation of ACRs

·         Character and integrity

·          Disposal of cases

3. Criteria for Assessment of Work Done:

In all states, judicial officers are expected to fulfill certain quantitative targets in terms of the work they do to get promoted which are known as ‘Norms’ or ‘Criteria for Assessment of Work Done’. There is great variety in the manner in which Norms have been prescribed in different states. The different aspects of the prescribed norms are as the following:-

1.      Structure of the Norms

·         Structure of the Norms refers to the manner in which norms have been prescribed in different States. In majority of the States a list of specific entries is provided in relation to different categories of judges. Each entry is attributed a quantitative weightage.

·         The entries can be in the form of description of cases, other judicial work or even administrative work of a judge.

2.      Nature of the Norms

·         Nature of Norms refers the quantitative description of the entries. In this respect, the Norms in different States can be divided into 3 types;

Ø  Units System:  In this system, each entry in the Norms is described as a unit, number of units or some fraction of a unit. The work done by a judge is then assessed in term of the aggregate of units earned by him in a day, month, quarter or a year.

Ø  Working Day System: In this system, each entry in the Norms is described as a working day, number of working days or a certain fraction of a working day. Judicial officers are expected to accomplish work equivalent to the prescribed number of working days

Ø  Case-Conversion System: In this system, entries are described in the form of a conversion ratio of base case. For example, for District and Sessions Judges, the basic case category is Sessions case. As per the norms, each sessions case is equivalent to five criminal appeals, twelve criminal revision petitions etc.

The Rating System

·         The rating system refers to the evaluation parameters in relation to the quantitative workload of judicial officers. The rating system prevalent in a State prescribes the quantitative benchmark that is expected of judicial officers and how they are rated for the workload achieved by them.

4.      Policy Regarding Non-Decisional Judicial Work

·         While the primary duty of judicial officer might be to render judicial decisions, they discharge a variety of other judicial functions. Conducting a test identification parade, recording statements or confessions under Section 164 of Cr.PC, examination of witnesses, framing of charges are various examples of such other judicial functions. These can be broadly categorised as Non-Decisional Judicial Work.

·     Though these functions by themselves need not result in a judicial decision, they do require substantial application of time from the judicial officers.

·         While the Norms for judicial officers mostly focus on attaching quantitative weightage to the judicial decision making in different category of cases, it is also necessary to recognize and credit the non-decisional judicial work of the judicial officers.

·         The policy in different States in this respect is varied. States usually include such work in the list of entries for which quantitative weightage is attached. Thus, judicial officers are allowed to earn quantitative weightage for specified non-decisional judicial work in the same way they earn quantitative weightage for decisional judicial work.

·         For example, in Assam, Officers in the offices of CJM, ACJM, JMFC, SPL JMFC are awarded 1 unit for every 10 statements recorded under Section 164 of Cr.PC.

5.      Policy Regarding Administrative Responsibilities

·         In addition to the judicial functions, judicial officers usually are also entrusted with a variety of administrative responsibilities. These responsibilities include organising legal literacy camps, inspection of courts, conducting departmental inquiries and being part of various administrative committees.

6.      Policy Regarding Disposal of Old Cases

·         One of the biggest problems in the Indian judicial system has been the pendency of cases over long periods of times. States have sought to address this issue by incorporating some special provisions in the Norms regarding disposal of old cases. The issue has been addressed primarily by three alternative ways or by a combination of the three ways. Thus disposal of old cases is also considered.

·         In some States, additional weightage is given to specific categories of old cases. Thus, while a normal disposal of a case would carry a certain quantitative weightage, an old case of the same type would carry additional quantitative weightage.

7.      Policy Regarding Incentive Weightage

·         In many States, schemes of incentive weightage have been adopted to promote greater disposal of a particular variety of cases. In States like New Delhi and Assam, incentive weightage is awarded when the judicial officers dispose a particular category of cases beyond a specified threshold. For example, 5 units awarded generally for the first 10 disposals in a particular category. After the tenth disposal, 8 units are awarded for each additional disposal.

8.      Policy Regarding Concession for Leave Availed

·   The policy regarding concession from quantitative benchmarks for leave availed is marked by variety of approaches. In States like Karnataka, Madhya Pradesh and Chhattisgarh, concession can be granted for leave availed only in certain specified kinds of leave. In States like Maharashtra, Manipur and West Bengal the quantitative benchmark is assessed only on the basis of the number of days an officer has actually worked. Thus the officers automatically get concession for any leave they might have availed. In States like Gujarat, Odisha and Assam, there does not seem to be any express rule regarding officers being granted concession for any leave availed by them.

Apart from the above mentioned aspects, there are some other things which affect the promotion of a judge i.e., internal contacts and politics. If one is having good contacts with higher authorities or the person is in the good books by the way of his/her cleverness or smart tactics, it becomes easier for them to be promoted to the office of next higher position in the hierarchy.

Promotions in New Delhi are based upon the following in addition to the discussed above:-

1.       Delhi Judicial Service Rules 1970,

2.        Delhi Higher Judicial Service Rules 1970 (as amended upto 15.2.2013)

3.       Criteria for Assessment of Work Done

4.       ACR Performa

Conclusion

The journey is not as simple as it seems to be for a person to achieve the post of the judge of High court acquiring the office of lower position. First of all one has to clear the competitive exam for that lower post which itself comprises of 3 difficult stages and after that one has to work really hard and develop those qualities and skills required for the post of higher post. Apart from that one has to achieve those merits and/or seniority to be considered for promotion.

The post How judges are elevated from Lower Court to High Court appeared first on Legal Desire Media and Insights.

The bench was headed by:-

JUSTICE R. BANUMATHI

JUSTICE R. SUBHASH REDDY

FACTS:

Appellant-Nandlal Baviskar and Dilip Waman Baviskar were close relatives. Dilip constructed a common wall in between his premises and the house of the appellant. As Dilip had incurred total expenses of the construction of wall, he demanded half of the expenses from the appellant which was refused back along with Parshuram and his son Sanjay-accused No. 2 and 3 respectively. At this time, the appellant was armed with a gupti, while Parshuram was allegedly armed with ballam and Sanjay was armed with a stick. When Gopichand, Dilip and Lakhichand saw the appellant approaching towards them along with two other persons, having weapons in their hands, it was alleged that Gopichand and Dilip went at one side but because of physical disability, Lakhichand was not quick enough to move. The appellant attacked Lakhichand with gupti on his left armpit. Parshuram assaulted Lakhichand with ballam; while Sanjay assaulted him with stick. Due to assault, Lakhichand sustained bleeding injuries on his chest, left armpit and became unconscious there and died.

Law was set in motion. Upon completion of investigation, charge sheet was filed against the appellant and two other accused under Section 302 IPC read with Section 34 IPC. The trial court held that the appellant caused the fatal injuries to the deceased and accused No.2 and 3 assaulted the deceased with ballam and stick and convicted all three of them under Section 302 IPC read with Section 34 IPC and sentenced each of them to undergo life imprisonment.

In appeal, the High Court held that only the appellant caused fatal injuries to the deceased with lethal weapon and accused No.2 and 3 came along with the appellant to the place of occurrence only in the later part of the incident and that there was no common intention to commit murder of the deceased and affirmed the conviction of the appellant and the sentence of life imprisonment imposed upon him while acquitting the others.

Aggrieved by the judgment of the High Court, the appellant- accused filed the appeal.

ISSUES:

• Whether the appellant-accused has made out a case for modification of his conviction under Section 304 Part II IPC instead of Section 302 IPC?
• Whether facts of the present case fall under Exception 4 to Section 300 IPC or not?

·OBSERVATIONS:

The court observed that:-

• In order to bring the case within Exception 4 to Section 300 IPC, the following conditions enumerated therein must be satisfied:- (i) The act must be committed without premeditation in a sudden fight in the heat of passion; (ii) upon a sudden quarrel; (iii) without the offender’s having taken undue advantage; and (iv) the accused had not acted in a cruel or unusual manner.
• Even if the fight was unpremeditated and sudden, if the weapon or manner of retaliation was disproportionate to the offence and if the accused had taken the undue advantage of the deceased, the accused cannot be protected under Exception 4 to Section 300 IPC.
• The fourth exception of Section 300 IPC covers acts done in a sudden fight.
• There was no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties were more or less to be blamed.
• It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties worked themselves into a fury on account of the verbal altercation in the beginning.
• A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel.
• For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.
• The dispute between the appellant and Dilip was due to construction of a common wall and non-sharing of expenses. The house of the appellant, being the next house of Dilip, there was no time gap between the first incident and the incident that followed, in which the appellant inflicted gupti injury on the left armpit of the deceased. Both the incidents cannot be said to be two different parts but are integral part of the same incident.
• The case comes within the Exception 4 to Section 300 IPC considering the facts and circumstances of the case.

HELD:

The Supreme Court partly allowed the appeal in terms of the conviction of the appellant and ordered to undergo imprisonment for twelve years.

For full judgement refer:

[embeddoc url=”https://www.supremecourt.gov.in/supremecourt/2018/29728/29728_2018_Judgement_15-Mar-2019.pdf” download=”all”]

The post Supreme Court explained conditions to be satisfied for bringing case within exception to Murder (IPC 300), Read Judgment appeared first on Legal Desire Media and Insights.

The bench was headed by:-

·       JUSTICE M. R. SHAH

·       JUSTICE L. NAGESWARA RAO

FACTS:

The appellant was appointed as Semi­-skilled worker, later was promoted as Skilled worker, in the respondent no.2 (R2) office, Heavy Alloy Penetrator Project. The appellant was further promoted and designated as Highly Skilled worker. The next promotional post was the Chargeman Grade­II (Electrical) which was governed by the statutory Rule notified by the Government of India and the post was required to be filled in as per the quota of 50% by way of promotion; 25% by way of LDCE (Limited Departmental Competitive Examination) and 25% by way of Direct Recruitment (DRQ). The appellant was promoted to the post of Chargeman Grade­II (Electrical) in the quota of 25% LDCE. Respondent   No.4 (R4)  applied for the same post in 25% DRQ as well as in 25% LDCE quota and was selected in both but he opted DRQ and refused LDCE quota. When the seniority list in the cadre was published, the   direct recruitee was to be placed below the LDCE, R4 was placed in the seniority list below the appellant, as R4was appointed in the 25%  DRQ.  Therefore, R4 made a representation to R2 which was rejected on the ground that he had been placed at an appropriate place in the respective seniority list as per the quota rule.

R4 approached the Central Administrative Tribunal, Madras by way of O.A. which was opposed. However the learned Tribunal later allowed it by observing that as an employee R4 was not aware of the rota-quota­ rule and directed the department to place the original applicant in the seniority list above the appellant and one another. 

Feeling aggrieved and dissatisfied with the order of the learned Tribunal, the appellant preferred a writ petition before the High Court which was dismissed and the order passed by the learned Tribunal was confirmed.  

As a result the original writ petitioner preferred the appeal in the Supreme Court against the order passed by the High Court.

ISSUES:

·       Who was responsible for the understanding of the recruitment process?

OBSERVATIONS:

The court observed that:-

·       Both, the High Court as well as the learned Tribunal, committed a grave error in directing to place the original applicant R4 in the seniority list above the appellant.

·      The appellant was promoted to the post of the Chargeman Grade­II in the LDCE quota and as per the rules, the seniority was required to be fixed as per the quota­-rota rule and as per the rule position in that year the direct recruitee was to be placed below the LDCE quota, since the LDCE selection process was treated as the Fast Track promotion.

·       R4 did not accept his appointment/promotion in LDCE quota though selected and offered but he continued his appointment as a direct recruitee.

·       The learned Tribunal as well as the High Court were not justified to grant the relief to R4 on the ground that the department ought to have informed and/or advised the employee wrt the seniority to be fixed on the basis of rota­-quota rule and as the department failed to do so, R4 cannot be denied his legitimate right to be placed at an appropriate place in the seniority list, as otherwise also he was selected for a promotion in the LDCE quota also.    

·       It was for the employee to know the rule. The department was not expected to advise and/or tell the employee about how the seniority will be fixed and/or about the rota­-quota rule.  

·   Since as per the rule position in that year the direct recruitee was to be placed before the LDCE, therefore R4 was rightly placed below the appellant in the seniority list being a direct recruitee.   

HELD:

The Supreme Court allowed the appeal setting aside the impugned judgment and order and dismissing the original application preferred by R4.  

For full judgement refer: 

[embeddoc url=”https://www.supremecourt.gov.in/supremecourt/2008/2314/2314_2008_Judgement_15-Mar-2019.pdf” download=”all”]

The post SC: Employee should know his recruitment process, department is not responsible to make them aware of it appeared first on Legal Desire Media and Insights.

The bench was headed by:-

·       JUSTICE ABHAY MANOHAR SAPRE

·       JUSTICE DINESH MAHESHWARI

FACTS:

The appellants along with other two accused were prosecuted for the offences punishable under Sections 323, 324, 452, 504 and 506 of the Indian Penal Code, 1860 (“IPC”) by the Judicial Magistrate, Mathura. However the Judicial Magistrate acquitted all the accused persons including the appellants from all the charges.

The State felt aggrieved and filed appeal before the Additional District and Sessions Judge, Mathura where the Appellate Court while partly allowing the appeal upheld the order of the Judicial Magistrate in respect of other two accused and convicted and sentenced the appellants as under:-  

All these punishments were to run concurrently.

The appellants felt aggrieved by the order of the Appellate Court and filed criminal revision before the High Court of Allahabad. By impugned order, the High Court dismissed the revision ex parte on account of non appearance of appellants at the time of hearing which resulted in filing of the appeal in Supreme Court by way of special leave by the appellants (accused).

ISSUES:

·       Whether the High Court was justified in dismissing the   appellants’ revision?

OBSERVATIONS:

The court observed that:-

·       The High Court failed to act in an expected manner to pass appropriate orders and it would have prevented the filing of appeal in Supreme Court.

·       The High Court while dismissing the revision did not assign any reason due to which court cannot countenance disposal of the revision in that manner. 

·       The High Court should have applied its judicial mind to the factual and legal aspects arising in the case and then would have passed appropriate orders either for upholding the conviction or acquitting the appellants, as the case may be.   

HELD:

The Supreme Court allowed the appeal by setting aside the impugned order. The case was remanded to the High Court for deciding the revision petition afresh on merits in accordance with law within six months.

For full judgement refer:

[embeddoc url=”https://www.supremecourt.gov.in/supremecourt/2017/22652/22652_2017_Judgement_15-Mar-2019.pdf” download=”all”]

The post SC: On non-appearance of any party, the court should apply its judicial mind on facts and issues before dismissing the appeal appeared first on Legal Desire Media and Insights.

FACTS:

In the present case Terasbai w/o appellant died other than in normal circumstances due to consumption of poisonous substance within seven years of marriage. According to the prosecution, the deceased was residing with the appellant after the marriage and he started demanded motor cycle & fridge and on non-fulfillment of the demand, assaulted the deceased repeatedly because of which she committed suicide and died. The matter was reported, the appellant was charge-sheeted and the trial court convicted and sentenced as under:-

All the jail sentences had been directed to run concurrently.

As result appellant approached the High Court challenging the judgement of the trial court.

ISSUES:

·       Whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband?

CONTENTIONS:

By appellants:

·       The ingredients of offences were not established, but the trial court overlooked the aspect of the matter and came to wrong conclusion.

·       The trial court had not evaluated the entire evidence in its true perspective, therefore, finding arrived at by the trial court was not sustainable.

·       The trial court had not evaluated the evidence of all the witnesses while passing the judgment, therefore, the finding arrived at by the trial court was liable to be reversed.

By respondents/State:

·       The finding arrived at by the trial court was based on relevant material placed on record and the same did not warrant any interference of the High Court with invoking jurisdiction of the appeal.

OBSERVATIONS:

The court observed that:-

·       The act of the appellant fell within mischief of Sections 304B, 306 & 498A of IPC for which the trial court rightly convicted the appellant.

·       It was clear that harassment was constantly made to the deceased because of which she committed suicide. Presumption u/s 113A for abetment of suicide was available against him.

·       He demanded dowry and harassed the deceased soon before her death within seven years of marriage, therefore, presumption u/s 113B for dowry death was also available against him.

·       The act of the appellant to drag the deceased to commit suicide by cruelty was an offence punishable u/s 498A of IPC.

·       The offence was committed in secrecy within four corners of matrimonial house, the appellant was under obligation to explain the fact which were specifically within his knowledge, but no explanation was given by him which approved all the charges against him.

HELD:

The court dismissed the appeal and upheld the judgement of the trial court. It was reported that the appellant had suffered full jail sentence and had been released from jail after getting benefit of remission on which no further order was required.

For full judgement refer: 

[embeddoc url=”http://cg.nic.in/hcbspjudgement/judgements_web/CRA551_12(20.02.19).pdf” download=”all”]

The post Chhattisgarh HC: If a woman dies in abnormal circumstances within 7years of marriage, it attracts the provisions of dowry death appeared first on Legal Desire Media and Insights.

FACTS:

These are two writ petitions whereby the challenge was common order of transfer. The two petitioners are Husband and Wife and both were working as Professor at Chhattisgarh Institute of Medical Science, Bilaspur. Both had been transferred to Government Medical College, Ambikapur. They had prayed that the order of transfer of both the petitioners be kept in abeyance till the academic session or the examination of their daughter was over.

ISSUES:

·       Whether transfer of the petitioners stands on hold for the time being?

CONTENTIONS:

By petitioners:

·       The transfer had been made during midsession particularly when the examination of their daughter was undergoing.

·       Therefore they be protected till the academic session was over.

·       Their daughter was a student of Class-IXth and her examination was scheduled to be held later in that month and would continue up till March, 2019.

·       Kindly let the order of transfer be kept in abeyance till the academic session or the examination of their daughter was over.

OBSERVATIONS:

The court observed that:-

·       The said request of the petitioners seemed to be fair and reasonable prayer on their part.

·       If a valid reason was given for the hold of transfer then it should be considered.

·       Disposition of the writ petitions would meet the ends of justice.

HELD:

The court allowed the writ petitions and disposed of with a direction to the respondents No.2&3 to ensure that the petitioners were not relieved from the present place of posting i.e. CIMS, Bilaspur, till 15th April and the respondents would be at liberty to relieve the petitioners, if need so arises, only after 15th April, 2019.

For full judgement refer:

[embeddoc url=”http://cg.nic.in/hcbspjudgement/judgements_web/WP(S)1051_19(15.02.19).pdf” download=”all”]

The post Chhattisgarh HC: Order of transfer can be kept in abeyance for a valid reason appeared first on Legal Desire Media and Insights.

The bench was headed by:-

·       CHIEF JUSTICE Mohammad Yaqoob Mir.

·       JUSTICE H.S. Thangkhiew

FACTS:

By this petition, petitioner declared Garo Hills District (Transfer of Land) Act, 1955 as void, ultra-vires, illegal and unconstitutional. Further he asked the court to command Garo Hills Autonomous District Council not to exercise power relating to transfer and settlement of land by issuance of Patta and further to nullify the Act of creation or reorganization of non hill mauza i.e. X, X-1 etc by the Garo Hills Autonomous District Council (GHADC) for want of such power under the provision of Sixth Schedule.

ISSUES:

·       Validity of Garo Hills District (Transfer of Land) Act, 1955.

·       Which of petitioner’s right guaranteed by the Constitution were getting infringed by the Garo Hills District (Transfer of Land) Act, 1955?

CONTENTIONS:

By petitioners:

·       Asked the respondent to show any rule/regulation or any customary precedent authorizing Smti. Enilla Ch. Marak to appoint the petitioner as Nokma when the petitioner admittedly was neither husband of Smti. Enilla Ch. Marak nor was anyway connected so as to get the status of Nokma.

·        Even otherwise being a citizen of India he was entitled to the rights and privileges guaranteed by the Constitution which could not be denied but his right were being infringed.

·       Act operates in a very harsh manner.

·       Act was void, ultra-vires, illegal and unconstitutional.

By respondents:

·       Asked the petitioner to show from the averments of his petition how any of his rights or privileges were getting violated.

·       Petitioner simply said in his petition that the Act operates harshly but could not show as to how his personal right and interest were getting jeopardized.

·       This petition was not worth to be entertained.

·       The petitioner had no locus.

OBSERVATIONS:

The court observed that:-

·       The petition should include all the claims and all the grounds on which such claims are being made for its maintenance in the court which was not fulfilled by the petitioner.

·       Petition should not be ambiguous in any way.

·       This petition had been filed with some design so as to take some benefits through the documents which were stated to haved been executed by Smti. Enilla Ch. Marak in favour of the petitioner.

·       Petition was not maintainable for want of locus because the petition highlighted that the petitioner claimed to have been appointed as Nokma/Headman of Tura Town area by Akhing Nokma of Danakgre Smti. Enilla Ch. Marak and otherwise also was entitled to all the rights and privileges as guaranteed by the Constitution of India and the laws framed there-under being a citizen of this country.

·       Dismissal of this petition for want of locus shall be without prejudice to his personal rights or otherwise for resorting to available, permissible and remedial measures.

HELD:

The court dismissed the writ petition but left it open to the petitioner to have recourse to such permissible legal measures as shall be otherwise available to him regarding the documents stated to have been executed in his favour by Smti. Enilla Ch. Marak.

For full judgement refer:

[embeddoc url=”http://lobis.nic.in/ddir/shb/MYM/judgement/18-02-2019/MYM18022019WP(C)0000362019.pdf” download=”all”]

The post Meghalaya HC: Petition should include all the grounds on which claims are being made for its maintenance appeared first on Legal Desire Media and Insights.