February - 2011

  • Anticipatory bail: The Hon'ble Supreme Court in one of the important pronouncement while relying on an earlier constitution bench of the Supreme Court has come down heavily on the rigours exercised by courts all over the country while granting anticipatory bail and the strict modus operandi which is adopted all over the nation after grant of anticipatory bail. The Hon'ble Court has held that the order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for regular bail is contrary to the legislative intent and the judgment of constitution bench in Sibbias' case. The Hon'ble court has further law down ten specific factors and parameters which can be taken into consideration while dealing with anticipatory bail. Siddharam Satlingappa Mhetre v. State of Maharastra, (Supreme Court).

  • Consolidation of cases: Although the Judicial Magistrate has been empowered u/s.210 of Code of Criminal Procedure, 1973 to club cases originating from police investigation & private complaint, however, in the peculiar facts of the case where the allegations, accused and evidence ran contrary to each other, then it would be appropriate for the Magistrate to hear the cases simultaneously, but separately. Pal @ Palla v. State of UP, (Supreme Court).
  • Consumer protection: Right to sue: Even in absence of formal agreement between the parties, the ultimate beneficiaries of the transaction have the right to sue as a consumer. Accordingly, when the Cooperative Housing Societies entered into agreement with the Housing Board for allotment, then in case of non-allotment, the members of the Societies would have right to sue against the Housing Board. Chandigarh Housing Board v. Avtar Singh, (Supreme Court).
  • Criminal charge: The object of framing of charge under criminal law is to enable an accused to have a clear idea of what he is being tried for and essential facts that he has to meet. Further, the accused has a right to know with certainty & accuracy the exact nature of charge as in absence of such knowledge he would not be able to prepare effective defence which would be failure of justice. However, in judging a question regarding the prejudice, the Courts must act with broad vision and not on the basis of technical objections raised by the accused. Main Pal v. State of Haryana, (Supreme Court).
  • Domestic relationship: u/s.2(f) of Protection of Women from Domestic Violence Act, 2005 connotes relationship which is wider than wife as envisaged u/s.125 Cr.P.C., and relying on the common law principles would include live-in relationship which are in the nature of marriage, i.e., to say that parties must have cohabited and held themselves out to the world as being akin to spouses for significant period of time. Accordingly, relationship with 'keep' whom a man uses for sexual purposes and/or as a servant does not constitute relationship in form of marriage. D Velusamy v. D Patchaiammal, (Supreme Court).
  • Guardian of child: Even though parents are natural guardian of a child, however, while deciding such an application by the Court, the welfare of the minor is the paramount consideration. Accordingly, when the father had re-married, was living alone for work, at a small village lacking educational facilities vis--vis those available at maternal grandfather's place, then till the age of twelve years minor directed to be with the maternal grandfather. Shyamrao Maroti v. Deepak Kisanrao, (2010) 10 SCC 314.
  • Principles of interpretation of contractual instruments:The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English common law and often applied by Courts in this country. It is akin to the doctrine of benefits & burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take former without complying with the latter. Shyam Telelink v. Union of India, (Supreme Court).
  • Rehabilitation:When the land is acquired by the State for any purpose, then the owners in addition of the compensation do not have the Constitutional Right to claim rehabilitation as condition precedent to the acquisition. As acquisition of land is exercised by the State invoking its powers of eminent domain, therefore, such acquisition as per the procedure established under the Land Acquisition Act, 1894 cannot be made subject to additional requirements, and right to livelihood cannot be invoked in such circumstances. Amarjit Singh v. State of Punjab, (Supreme Court) (3J).
  • Substantial question of law:While deciding a dispute in respect of involvement of substantial question of law in an Income Tax Appeal filed before the High Court has held that a finding of fact give rise to a substantial question of law, interealia (i) when the findings are based on no evidence and/or (ii) while arriving at the said finding, relevant admissible evidence has not been taken into consideration or (iii) inadmissible evidence has been taken into consideration or (iv) legal principles have not been applied in appreciating the evidence, or (v) when the evidence has been misread. Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi, (Supreme Court).
  • Taxation statutes: Exemption: A constitution bench judgment while relying on earlier decisions has reiterated that generally a provision providing for exemption/benefit is to be strictly construed. If the statute lays down certain pre-requisites for availing the benefit/exemption then the same must be fulfilled. However by judicial intervention court have formulated the doctrine of substantial compliance which is equitable in nature, to avoid hardship in cases where a party does all the can be reasonable expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as essence or the substance of the requirements. Commissioner of Central Excise v. Hari Chand Shri Gopal & Others, (Supreme Court) (3J).
  • Words & phrases: Software: It is set of instructions that allow the physical hardware to function and perform computation in a particular manner, be it a word processor, web-browser or computer's operating system. LML Limited v. Commissioner of Customs, (Supreme Court).

* As compiled by Advocates Harsh Wardhan & Uttam Maheshwari.

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