March - 2011

  • Competition Commission of India – appeal: The word ‘any’ is required to be read as qualified by the preceding words, and therefore, no appeal would lie u/s.53-A of Competition Act, 2002 against an order rejecting extension of time to file reply applying the maxim of expressum facit cessare tacitum. However, such an order could be challenged along with the final order in appeal. Competition Commission of India v. Steel Authority of India Limited, (Supreme Court) (3J).

  • Consumer Protection Act, 1986: Limitation: When the affect of medical negligence is manifest then the cause of action arose on the date when negligence was committed, however, when the affect is latent, than the cause of action arises when the harm/injury is discovered or could have been discovered by exercising reasonable diligence. The latter is known as a discovery rule which looses the rigours of limitation of two years are prescribed under s.23-A of the Act. In the instant case when the abdominal pain initiated and continued immediately after operation being conducted, than long wait of nine years debarred the claim under the enactment. VN Shrikhande v. Anita Sena Fernandes, (Supreme Court).
  • Corporate Criminal Liability: Attribution: A corporate body cannot claim immunity from the criminal offences on the premise that it cannot have a mens rea, i.e., an intention to commit crime. If the degree of control is so intense that a corporation may be said to think & act through a person or body of persons, mens rea of such person(s) in control is attributable to the corporation. Accordingly held that criminal prosecution cannot be dropped on the solitary premises that it has been initiated against a corporate entity. Iridium India Telecom v. Motorola Incorporated, (Supreme Court).
  • Criminal law: Confession: (1) Provision of s.164 Code of Criminal Procedure, 1973 to be strictly complied, (2) Magistrate shall enquire whether accused has been influenced in custody to confess, (3) Magistrate shall also enquire as to why accused wants to incriminate himself, (4) Maker should be granted sufficient time for reflection, (5) Maker should be assured protection from police if he declines to confess, (6) A judicial confession not given voluntarily is not reliable, cannot form basis of conviction, (7) Violation of provision would negate confession, (8) During time of reflection, accused should be completely away from police influence, (9) At time of recording confession, police should not be around, (10) Confession of co-accused is weak type of evidence, (11) Usually court requires some corroboration before convicting on the basis of confession. Rabindra Kumar Pal @ Dara Singh v. Republic of India, (Supreme Court).
  • Equitable jurisdiction: When the jurisdiction under Article 32, 136 & 226 of Constitution of India is sought to be invoked on the basis of apprehensions against statutory authorities wherein on consideration of allegations of both the parties it becomes evident that claims of Petitioner are unsubstantiated & doubtful in nature, than held that equitable jurisdiction cannot be invoked. Ritesh Tiwari v. State of Uttar Pradesh, (Supreme Court).
  • Income tax: Settlement Commission: Proceedings: These proceedings amount to assessment which takes place u/s.245-D(1) of Income Tax Act, 1961, and in computation of total income by the Commission, provisions dealing with regular assessment, self-assessment and levy & computation of interest for default in payment of advance tax are engrafted and accordingly s.234-B & C are equally applicable therein. Further held, that prior to an order being passed u/s.245-D admitting the case by the Settlement Commission, the Assessment Officer continues to have jurisdiction, however, after such an order it is the Commission which has exclusive jurisdiction. Brij Lal v. Commissioner of Income Tax, (Supreme Court) (5J).
  • Land acquisition: Persons who had not made a reference u/s.18 of Land Acquisition Act, 1894 owing to certain reasons would be entitled for moving an application to the Collector u/s.28-A(2) within three months of the award, and further a reference u/s.28-A(3) if he dissatisfied with the fresh award so made. However, such persons cannot get more compensation then those who had made reference u/s.18 of the enactment. V Ramakrishna Rao v. Singareni Collieries Company, (Supreme Court).
  • Nomination: The right which stands vested by way of nomination under s.45ZA of Finance and Banking Regulation Act, 1949 is operation of the bank account after the death of the account holder, and does not determine the rights of succession between the heirs of the said account holder. Ram Chander Talwar v. Devender Kumar Talwar, (Supreme Court).
  • Secularism: In a country like ours where discrimination on the ground of caste or religion is a taboo, taking lives of persons belonging to another caste or religion is bound to have a dangerous and reactive effect on the society at large. It strikes at the very root of the orderly society which the founding fathers of our Constitution dreamt of. Our concept of secularism is that State will have no religion. The State shall treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual right of religion, faith & worship. Rabindra Kumar Pal @ Dara Singh v. Republic of India, (Supreme Court).
  • Writ of Mandamus: When the draft bill has already been prepared which would determine the conflicting fundamental rights of several parties, such as hawkers & pedestrians, and also affects the town planning of the city, then writ of mandamus issued for enactment of law in time bound frame. Gainda Ram v. Municipal Corporation of Delhi, (Supreme Court).

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