Sick Industrial Companies (Special Provisions) Act, 1985 — Object of enactment — Held, Act was enacted to overcome the grossly inadequate and time consuming institutional arrangements that were then in place for revival and rehabilitation of sick industrial companies.
Raheja Univeral Limited v. NRC Limited & Ors., (2012)4 SCC 148, Referred.
(Para 7)
Yash Deep Trexim Private Limited v. Namokar Vinimay Pvt. Ltd. [Bench Strength 2], Civil Appeal Nos. 8440-8445/2013 (Arising out of SLP (C) Nos. 39005-39010/2012) (23/09/2013), Civil Appeal Nos. 8440-8445/2013 (Arising out of SLP (C) Nos. 39005-39010/2012) [P. Sathasivam, C.J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Articles 341 & 342 r/w Article 136 — Scheduled Caste in State of birth — Migration after marriage, Husband belonging to reserved category in State of migration — Entitlement to benefit of reservation, Determination of, Reference to larger bench for — Appellant applied for appointment as District Information Officer — Candidature cancelled on the ground that she cannot take benefit of reservation in the State of Uttarakhand because she is a Scheduled Caste (Valmiki of Punjab) — Challenged to — Held, since the other related matter has been referred to a larger Bench, it would be just and proper to refer this matter also to the larger Bench.
Marri Chandra Shekhar Rao v. Dean, Seth G. S. Medical College and others (1990) 3 SCC 130, State of Maharashtra and another v. Union of India and another (1994) 5 SCC 244, Subhash Chandra and another v. Delhi Subordinate Services Selection Board and others, (2009) 15 SCC 458 & Pushpa and others v Sivachanmugavelu and others, (2005) 3 SCC 1, Referred.
(Para 16)
Ranjana Kumari v. State of Uttaranchal [Bench Strength 2], Civil Appeal No. 8225/2013 (Arising out of SLP (C) No. 33724/2011) (23/09/2013), Civil Appeal No. 8225/2013 (Arising out of SLP (C) No. 33724/2011) [G.S. Singhvi, J.: V. Gopala Gowda, J.] <<LAWPACK SUPREME COURT>>
Arbitration and Conciliation Act, 1996 — Sections 27 & 25 — Direction for production of assessment orders — Claim based on assessment order, Justification for — Challenge to direction of High court to produce the documents as sought by respondent No.1 before Arbitral Tribunal, taking objection that assessment orders were confidential documents, and Section 71 of the Maharashtra Value Added Tax, 2002 and its pre-cursor Section 64 of the Bombay Sales Tax Act, did not permit production of these documents — Held, both these provisions contained a bar only against the Government officers from producing the documents mentioned therein — There is no bar therein against a party to produce any such document — Thus, if a claim is to be decided on the basis of an order of assessment, the claimant as well cannot be denied the right to seek a direction to the party concerned to produce the assessment order — It is this very prayer which has been allowed by the orders passed by Arbitrator, and rightly so — Dismissed — Maharashtra Value Added Tax Act, 2002 — Section 71 — Production of assessment orders — Bar on.
Tulsiram Sanganaria and Another v. Srimati Anni Rai and Ors. 1971(1) SCC 284, Referred.
(Para 24)
Delta Distilleries Limited v. United Spirits Limited [Bench Strength 2], Civil Appeal No. 8426/2013 (@ out of Special Leave Petition (Civil) No. 28418/2012 ) (23/09/2013), Civil Appeal No. 8426/2013 (@ out of Special Leave Petition (Civil) No. 28418/2012 ) [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Arbitration and Conciliation Act, 1996 — Sections 25 & 27 — Direction for production of assessment orders — Defence of documents being confidential before tribunal, Subsequent plea of non-availability before High court, Effect of — Challenge to direction of High court to produce the documents as sought by respondent No.1 before Arbitral Tribunal — Held, stand of non-availability of documents before High court was clearly an after thought — Single Judge rightly allowed the petition as against the appellant, directing the appellant to produce the documents which were sought by the respondent no. 1 — Appeal dismissed –
(Para 25)
HELD: There is one more aspect which we must note, i.e., when the first respondent made an application for production of the assessment orders, the defence taken by the appellant in their affidavit dated 16.9.2011 was that those documents were confidential documents, and could not be directed to be produced. It was not stated at that time that the said documents were not available. It is ten months thereafter, that when the second affidavit was filed in the High Court, that the respondent for the first time contended that the said documents were not available. This was clearly an after thought, and this attitude of the Respondent in a way justified the earlier order permitting an application under Section 27 passed by the Arbitral Tribunal. The Assistant Commissioner of Sales Tax of the concerned area was also joined as respondent so that he could be directed to produce the required documents. However, he reported that those documents were old records, and were destroyed. The learned Single Judge did not pass any order against the respondent No.2 to produce the documents, as sought. However, the learned Single Judge rightly allowed the petition as against the appellant in terms of prayer clause `A’, directing the appellant to produce the documents which were sought by the respondent no. 1.
(Para 25)
Delta Distilleries Limited v. United Spirits Limited [Bench Strength 2], Civil Appeal No. 8426/2013 (@ out of Special Leave Petition (Civil) No. 28418/2012 ) (23/09/2013), Civil Appeal No. 8426/2013 (@ out of Special Leave Petition (Civil) No. 28418/2012 ) [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Arbitration and Conciliation Act, 1996 — Sections 25 & 27 — Default of party — Power of tribunal to proceed — Held, in the event a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings, and make the arbitral award on the evidence before it — This evidence can be sought either from any third person or from a party to the proceeding itself.
(Para 19)
Delta Distilleries Limited v. United Spirits Limited [Bench Strength 2], Civil Appeal No. 8426/2013 (@ out of Special Leave Petition (Civil) No. 28418/2012 ) (23/09/2013), Civil Appeal No. 8426/2013 (@ out of Special Leave Petition (Civil) No. 28418/2012 ) [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Arbitration and Conciliation Act, 1996 — Section 27 — Term ‘any person’ — Scope of — Held, term `any person’ is wide enough to cover not merely the witnesses, but also the parties to the proceeding.
(Para 19)
Delta Distilleries Limited v. United Spirits Limited [Bench Strength 2], Civil Appeal No. 8426/2013 (@ out of Special Leave Petition (Civil) No. 28418/2012 ) (23/09/2013), Civil Appeal No. 8426/2013 (@ out of Special Leave Petition (Civil) No. 28418/2012 ) [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Interpretation of Statutes — Statute — Words used in, Interpretation of — Held, words used in a statute are to be read as they are used, to the extent possible, to ascertain the meaning thereof.
(Para 24)
Delta Distilleries Limited v. United Spirits Limited [Bench Strength 2], Civil Appeal No. 8426/2013 (@ out of Special Leave Petition (Civil) No. 28418/2012 ) (23/09/2013), Civil Appeal No. 8426/2013 (@ out of Special Leave Petition (Civil) No. 28418/2012 ) [A.K. Patnaik, J.: H.L. Gokhale, J.] <<LAWPACK SUPREME COURT>>
Rajasthan Agricultural University, Udaipur Act, 2000 — Sections 39, 38, 8 & 2(h) — Change of pension scheme for University employees — Without consulting Chancellor of University, University dependent on State for financial funds, Legality of — University (by Board of Management) gave option to its employees to opt either for Pension Scheme or to continue with the Contributory Provident Fund scheme by resolutions, without consulting appellant — On orders of appellant, pension Scheme abolished — Employees approached High Court — By impugned order, High Court allowed the petition and quashed order passed by appellant/Government — Government preferred appeal — Held, High Court ought not to have constrained the University to continue to pay pension to the respondent-employees, especially in view of the fact that the change effected in the payment of retiral benefits to the employees was never approved by the Chancellor of the University, as University although an autonomous body, but much dependent on the State of Rajasthan in its financial matters — Therefore, impugned judgment quashed — Order passed by appellant-State shall operate and employees shall be given retiral benefits as per the Contributory Provident Fund Scheme which was in force prior to resolutions — Appeals allowed.
(Para 27, 28, 29, 31 & 36)
HELD: In spite of clear and unambiguous provisions of Section 39 of the Act, the Board of Management of the University did not get necessary assent of the Chancellor, i.e. the Governor of the State of Rajasthan before effecting the change in the scheme with regard to payment of retiral benefits to its employees. The change in scheme would result into a huge financial liability on the University, which ultimately will have to be borne by the appellant-the State of Rajasthan. Had the University been having complete autonomy and had been not dependent on the State of Rajasthan in its financial matters, possibly Section 39 of the Act would not have been incorporated in the Act in the form in which it is at present. When the appellant is reimbursing the expenditure incurred by the University by giving grants or financial aids in one form or the other, the control exercised by the State on the University in the financial matters is completely justified. The University cannot unilaterally decide to give huge financial benefit to its employees without taking consent of the Chancellor, i.e. the Governor of the State of Rajasthan in violation of the provisions of Section 39 of the Act.
(Para 29)
State of Rajasthan v. A.N. Mathur [Bench Strength 2], Civil Appeal No. 8469/2013 (Arising out of SLP (C) No. 12350/2013) (23/09/2013), Civil Appeal No. 8469/2013 (Arising out of SLP (C) No. 12350/2013) [Anil R. Dave, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
Administrative Law — Natural justice — Violation of one of the principles of, Effect of — Held, Violation of one of the principles of natural justice would make the action voidable and not void.
(Para 33)
State of Rajasthan v. A.N. Mathur [Bench Strength 2], Civil Appeal No. 8469/2013 (Arising out of SLP (C) No. 12350/2013) (23/09/2013), Civil Appeal No. 8469/2013 (Arising out of SLP (C) No. 12350/2013) [Anil R. Dave, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
Administrative Law — Administrative decision — Non-issuance of show cause notice, Show cause notice mere formality, Effect of — Held, if issuance of show cause notice is a mere formality, final decision without giving notice not bad in law.
(Para 34 & 35)
State of Rajasthan v. A.N. Mathur [Bench Strength 2], Civil Appeal No. 8469/2013 (Arising out of SLP (C) No. 12350/2013) (23/09/2013), Civil Appeal No. 8469/2013 (Arising out of SLP (C) No. 12350/2013) [Anil R. Dave, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
Hindu Marriage Act, 1955 — Section 9 — Petition under — Observation of court to initiate criminal proceedings against husband for offence of rape, Justifiability of — Parties were minor at time of marriage and respondent gave birth to a daughter when the parties lived together as husband and wife — In petition for restitution of conjugal rights and maintenance for child, High Court passed the impugned order, dismissing the petition, holding that marriage would be void and further observed that it would be open to respondent wife to initiate criminal proceedings for prosecution of appellant for an offence punishable under Section 376 IPC — Observation challenged — Held, High Court was not justified in making such observations — Only relief sought by the respondent was for restitution of conjugal rights and maintenance for child — It was an ideal case to be referred to conciliation/mediation but, instead observations made in impugned judgment would push the parties further into conflict — Impugned observations deleted — Appeal allowed.
(Para 8)
Bheemraya v. Suneetha [Bench Strength 2], Civil Appeal No. 8572/2013 (Arising out of Special Leave Petition (Civil) No. 26148/2011) (23/09/2013), Civil Appeal No. 8572/2013 (Arising out of Special Leave Petition (Civil) No. 26148/2011) [Surinder Singh Nijjar, J.: Fakkir Mohamed Ibrahim Kalifulla, J.] <<LAWPACK SUPREME COURT>>
Family Law — Matrimonial dispute — Encouragement to reconciliation in — Held, attitude of the Court in matrimonial dispute should be to encourage and persuade the parties to reconcile.
(Para 8)
Bheemraya v. Suneetha [Bench Strength 2], Civil Appeal No. 8572/2013 (Arising out of Special Leave Petition (Civil) No. 26148/2011) (23/09/2013), Civil Appeal No. 8572/2013 (Arising out of Special Leave Petition (Civil) No. 26148/2011) [Surinder Singh Nijjar, J.: Fakkir Mohamed Ibrahim Kalifulla, J.] <<LAWPACK SUPREME COURT>>
Family Law — Matrimonial dispute — Duty of court in — Held, paramount duty of the Court in matrimonial matters should be to restore peace in the family — Only as a last resort the Court ought to decide the suit/proceeding on merits.
(Para 8)
Bheemraya v. Suneetha [Bench Strength 2], Civil Appeal No. 8572/2013 (Arising out of Special Leave Petition (Civil) No. 26148/2011) (23/09/2013), Civil Appeal No. 8572/2013 (Arising out of Special Leave Petition (Civil) No. 26148/2011) [Surinder Singh Nijjar, J.: Fakkir Mohamed Ibrahim Kalifulla, J.] <<LAWPACK SUPREME COURT>>
Service and Labour Law — Appointment — Deliberate mention of wrong DOB in service record, To avail benefit of eligibility age, Effect of — Respondent joined as Mining Sirdar and for being selected on said post appeared in Gas Testing Examination, Sirdarship examination and Overmanship certificate examination — On the basis of declaration, his date of birth was reflected in Form `B’ Register and service book — General Manager of appellant-company rejected objection of respondent for changing his date of birth — Division Bench overturned the judgment and order passed by Single Judge that gave stamp of approval to appellant’s decision — Appeal — Held, Division Bench erred in extending the benefit to the respondent who had taken undue advantage by not producing the Matriculation Certificate solely on the motive to get an entry into service and therefore, same is set aside — Appeal allowed — Coal Mines Regulations, 1957 — Regulations 14(1) & 15 — Mining Sirdar — Eligibility for appointment.
Union of India v. C. Rama Swamy and others, (1997)4 SCC 647 & G.M., Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushad and others, (2008)8 SCC 696, Relied on.
(Para 16, 17 & 18)
Eastern Coalfields Ltd. v. Bajrangi Rabidas [Bench Strength 2], Civil Appeal No. 8634/2013 (Arising out of S.L.P. (C) No. 22813/2007) (23/09/2013), Civil Appeal No. 8634/2013 (Arising out of S.L.P. (C) No. 22813/2007) [Anil R. Dave, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 226 — Jurisdiction of High Court under — Nature and object of — Held, jurisdiction of High Court under Article 226 of the Constitution is equitable and discretionary and to be exercised to reach injustice wherever it is found.
Sangram Singh v. Election Commissioner, Kotah and another, (1955)2 SCR 1, Referred.
(Para 17)
Eastern Coalfields Ltd. v. Bajrangi Rabidas [Bench Strength 2], Civil Appeal No. 8634/2013 (Arising out of S.L.P. (C) No. 22813/2007) (23/09/2013), Civil Appeal No. 8634/2013 (Arising out of S.L.P. (C) No. 22813/2007) [Anil R. Dave, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 173(8) — Monitoring of investigation by Court — Completion of investigation and commencement of trial, Effect of — Dara Singh/ deceased husband of petitioner, a most wanted criminal, was killed in an encounter with Special Operation Group after a gun-battle — Petitioner filed a complaint seeking directions for registration of an FIR — CBI inquiry directed in the matter and charge-sheet filed after investigation — Whether further monitoring to be continued with? — Held, monitoring of a case is continued till the investigation continues — It would not be proper for this Court to keep on monitoring the trial which is continuing before a competent court — Accordingly, since the investigation has already been completed, charge-sheet has been filed, trial has already commenced, it is not necessary for this Court to continue with the monitoring of the case in question — Criminal Law — Investigation — Monitoring by Court.
Vineet Narain v. Union of India, [1998 (1) SCC 226], Union of India v. Sushil Kumar Modi, [1998 (8) SCC 661, Rajiv Lalan Singh "Lalan" (8) v. Union of India, 2006 (6) SCC 613, M.C. Mehta v. Union of India, 2007 (1) SCC 110, Jakia Nasim Ahesan v. State of Gujarat, 2011 (12) SCC 302 & Narmada Bai v. State of Gujarat, 2011 (5) SCC 79, Relied on.
(Para 14 & 15)
Sushila Devi v. State of Rajasthan [Bench Strength 2], Criminal Miscellaneous Petition No. 21811/2010 with Criminal Miscellaneous Petition No. 17950/2011 and Criminal Miscellaneous Petition No. 15638/2012 in Criminal Miscellaneous Petition No. 21811/2010 in Special Leave Petition (Criminal) No. 3212/2008 (24/09/2013), Criminal Miscellaneous Petition No. 21811/2010 with Criminal Miscellaneous Petition No. 17950/2011 and Criminal Miscellaneous Petition No. 15638/2012 in Criminal Miscellaneous Petition No. 21811/2010 in Special Leave Petition (Criminal) No. 3212/2008 [Surinder Singh Nijjar, J.: Pinaki Chandra Ghose, J.] <<LAWPACK SUPREME COURT>>
Karnataka Sales Tax Act, 1957 — Section 28(6) — Works contract involving transfer of property — Levy of sales tax on, Validity of — Appellant/L&T is engaged in property development along with the owners of vacant sites — Development agreement with owner of land, for construction of a multi-storeyed apartment complex and agreements of sale with intended purchasers — Deputy Commissioner served notice upon L&T proposing to tax sale of materials used in the construction of flats on the ground that it was entitled to 75 per cent of the share of the projects — Objection of L&T is to the assessment of tax for development of projects — Issue is whether the view taken in Raheja Development with reference to definition of “works contract” in KST Act is legally unjustified? — Held, in development agreement between the owner of the land and the developer, direct monetary consideration may not be involved but such agreement cannot be seen in isolation to the terms contained therein and following development agreement, the agreement in the nature of the tripartite agreement between the owner of the land, the developer and the flat purchaser whereunder the developer has undertaken to construct for the flat purchaser for monetary consideration — Thus, there is nothing wrong if the transaction is treated as a composite contract comprising of both a works contract and a transfer of immovable property and levy sales tax on the value of the material involved in execution of the works contract — Raheja Development lays down the correct legal position and same is approved — Thus, no merit in the challenge to the constitutional validity to the provisions — Maharashtra Value Added Tax Act, 2002 — Section 2(24) — Constitutional validity of — Maharashtra Value Added Tax Rules, 2005 — Rule 58(1-A) — Constitutional validity of — Constitution of India — Article 366(29-A)(b) — Construction contract — Levy of sales tax on –
K. Raheja Development Corporation v. State of Karnataka; (2005) 5 SCC 162, Relied on.
(Para 93, 95, 111, 118, 121 & 124)
HELD: Ordinarily in the case of a works contract the property in the goods used in the construction of the building passes to the owner of the land on which the building is constructed when the goods and materials used are incorporated in the building. But there may be contract to the contrary or a statute may provide otherwise. Therefore, it cannot be said to be an absolute proposition in law that the ownership of the goods must pass by way of accretion or exertion to the owner of the immovable property to which they are affixed or upon which the building is built.
(Para 95)
The value of the goods which can constitute the measure of the levy of the tax has to be the value of the goods at the time of incorporation of goods in the works even though property in goods passes later. Taxing the sale of goods element in a works contract is permissible even after incorporation of goods provided tax is directed to the value of goods at the time of incorporation and does not purport to tax the transfer of immovable property. The mode of valuation of goods provided in Rule 58(1A) has to be read in the manner that meets this criteria and we read down Rule 58(1-A) accordingly. The Maharashtra Government has to bring clarity in Rule 58 (1-A) as indicated above. Subject to this, validity of Rule 58(1-A) of MVAT Rules is sustained.
(Para 124)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 366(29-A)(b) — Construction contract — Stage for becoming works contract — Held, activity of construction undertaken by the developer would be works contract only from the stage the developer enters into a contract with the flat purchaser — Value addition made to the goods transferred after the agreement is entered into with the flat purchaser can only be made chargeable to tax by the State Government.
(Para 115)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 366(29-A)(b) — Expressions, `goods’ and “in some other form” — Interpretation of — Discussed.
(Para 60)
HELD: It is important to ascertain the meaning of sub-clause (b) of clause 29-A of Article 366 of the Constitution. As the very title of Article 366 shows, it is the definition clause. It starts by saying that in the Constitution unless the context otherwise requires the expressions defined in that article shall have the meanings respectively assigned to them in the article. The definition of expression “tax on sale or purchase of the goods” is contained in clause (29-A). If the first part of clause 29-A is read with sub-clause (b) along with latter part of this clause, it reads like this: tax on the sale or purchaser of the goods” includes a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made. The definition of “goods” in clause 12 is inclusive. It includes all materials, commodities and articles. The expression, `goods’ has a broader meaning than merchandise. Chattels or movables are goods within the meaning of clause 12. Sub-clause (b) refers to transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract. The expression “in some other form” in the bracket is of utmost significance as by this expression the ordinary understanding of the term `goods’ has been enlarged by bringing within its fold goods in a form other than goods. Goods in some other form would thus mean goods which have ceased to be chattels or movables or merchandise and become attached or embedded to earth. In other words, goods which have by incorporation become part of immovable property are deemed as goods. The definition of `tax on the sale or purchase of goods’ includes a tax on the transfer or property in the goods as goods or which have lost its form as goods and have acquired some other form involved in the execution of a works contract.
(Para 60)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 366(29-A)(b) — Transfer of property in goods — Whether sale of goods? — Held, a transfer of property in goods is deemed to be a sale of the goods involved in the execution of a works contract by the person making the transfer and the purchase of those goods by the person to whom such transfer is made.
(Para 61)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 366(29-A)(b) — Contract comprising works contract and transfer of immovable property — Whether works contract? — Held, where a contract comprises of both a works contract and a transfer of immovable property, such contract does not denude it of its character as works contract –
Australian case, M.R. Hornibrook (Pty.) Ltd. v. The Federal Commissioner of Taxation; (1939) 62 C.L.R. 272 & Builders’ Association of India and others v. Union of India and others; (1989) 2 SCC 645 Referred.
(Para 97)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Schedule VII List II Entry 54 — Levy sales tax in agreement of sale of flat — Power of State legislature to — Held, State legislatures lack legislative power to levy tax on the transfer of immovable property — However, States do have competence to levy sales tax on the sale of goods in an agreement of sale of flat which also has a component of a deemed sale of goods.
Bharat Sanchar Nigam Limited and another v. Union of India and others; (2006) 3 SCC 1, Referred.
(Para 100)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 366(29-A)(b) — Building contracts — A kind of works contract — Held, building contracts are species of the works contract.
(Para 101)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — 46th Amendment — Effect on levy of sales tax on materials used — Held, by Forty-sixth Amendment, States have been empowered to bifurcate the contract and to levy sales tax on the value of the material in the execution of the works contract
Builders’ Association of India and others v. Union of India and others; (1989) 2 SCC 645 & State of U.P. & Ors. v. P.N.C. Construction Co. Ltd. & Ors.; (2007) 7 SCC 320, Referred.
(Para 63, 96 & 101(viii))
HELD: Value addition as a concept after Forty-sixth Amendment to the Constitution has been accepted by this Court in P.N.C. Construction17. While dealing with this concept, the Court said that value addition was important concept which had arisen after the Forty-sixth Amendment by insertion of sub-clause (b) of clause (29-A) in Article 366. It has now become possible for the States to levy sales tax on the value of the goods involved in a works contract in the same way in which the sales tax was leviable on the price of the goods in a building contract. On account of the Forty-sixth Amendment in the Constitution the State Governments are empowered to levy sales tax on the contract value which earlier was not possible.
(Para 96)
Even in a single and indivisible works contract, by virtue of the legal fiction introduced by Article 366(29-A)(b), there is a deemed sale of goods which are involved in the execution of the works contract. Such a deemed sale has all the incidents of the sale of goods involved in the execution of a works contract where the contract is divisible into one for the sale of goods and the other for supply of labour and services. In other words, the single and indivisible contract, now by Forty-sixth Amendment has been brought on par with a contract containing two separate agreements and States have now power to levy sales tax on the
(Para 101(viii)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 366(29-A)(b) — Works Contract — Interpretation of — Sales Tax Law — Works contract — Interpretation of — Discussed.
Radha Raman v. State of Uttar Pradesh & Ors.; AIR (1954) Allahabad 700, Referred.
(Para 73 & 76)
HELD: The ordinary dictionary meaning of the word “work” means a structure or apparatus of some kind; architecture or engineering structure, a building edifice. When it is used in the plural, i.e., as works, it means architectural or engineering operations, a fortified building, a defensive structure, fortification or any of the several parts of such structures. In Webster Comprehensive Dictionary, International Edition the term “work” is stated to be, ……… (2) that upon which labor is expended; an undertaking task. (3) that which is produced by or as by labor, specifically, an engineering structure;………… In the same dictionary, the term “works” is stated as a manufacturing establishment including buildings and equipment –
(Para 73)
Term `works contract’ in Article 366(29-A)(b) is amply wide and cannot be confined to a particular understanding of the term or to a particular form. The term encompasses a wide range and many varieties of contract. The Parliament had such wide meaning of “works contract” in its view at the time of Forty-sixth Amendment. The object of insertion of clause 29-A in Article 366 was to enlarge the scope of the expression “tax of sale or purchase of goods” and overcome Gannon Dunkerley-I. Seen thus, even if in a contract, besides the obligations of supply of goods and materials and performance of labour and services, some additional obligations are imposed, such contract does not cease to be works contract. The additional obligations in the contract would not alter the nature of contract so long as the contract provides for a contract for works and satisfies the primary description of works contract. Once the characteristics or elements of works contract are satisfied in a contract then irrespective of additional obligations, such contract would be covered by the term `works contract’. Nothing in Article 366(29-A)(b) limits the term “works contract” to contract for labour and service only. Learned Advocate General for Maharashtra was right in his submission that the term “works contract” cannot be confined to a contract to provide labour and services but is a contract for undertaking or bringing into existence some “works”. We are also in agreement with the submission of Mr. K.N. Bhat that the term “works contract” in Article 366(29-A)(b) takes within its fold all genre of works contract and is not restricted to one specie of contract to provide for labour and services above. The Parliament had all genre of works contract in view when clause 29-A was inserted in Article 366.
(Para 76)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 366(29-A)(b) — Contract for work and contract for sale — Difference between, Difficulty of absolute tests — Held, there are not and there cannot be absolute tests to distinguish a sale and works contract.
Lee v. Griffin; (1861) 1 B. & S. 272, Robinson v. Graves; (1935) 1 KB 579, Chandra Bhan Gosain v. State of Orissa and Others; (1964) 2 SCR 879, Commissioner of Sales Tax, M.P. v. Purshottam Premji; (1970) 26 S.T.C. 38, The State of Punjab v. M/s. Associated Hotels of India Ltd.; [(1972) 1 SCC 472, The Assistant Sales Tax Officer and Others v. B.C. Kame, Proprietor Kame Photo Studio; (1977) 1 SCC 634, Hindustan Aeronautics Ltd. v. State of Karnataka; (1984) 1 SCC 706, State of A.P. v. Kone Elevators (India) Ltd.; (2005) 3 SCC 389 & Hindustan Shipyard Ltd. v. State of A.P.; (2000) 6 SCC 579, Referred.
(Para 81)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 366(29-A)(b) — Works contract — Levy of tax on goods sold in execution of, Conditions for — Discussed.
(Para 94)
HELD: For sustaining the levy of tax on the goods deemed to have been sold in execution of a works contract, in our opinion, three conditions must be fulfilled: (i) there must be a works contract, (ii) the goods should have been involved in the execution of a works contract, and (iii) the property in those goods must be transferred to a third party either as goods or in some other form. In a building contract or any contract to do construction, the above three things are fully met. In a contract to build a flat there will necessarily be a sale of goods element. Works contracts also include building contracts and therefore without any fear of contradiction it can be stated that building contracts are species of the works contract.
(Para 94)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Sales Tax Law — Works contract — Levy of sales tax on, Dominant intention of contract, Relevance of — Held, it is not necessary to ascertain what is the dominant intention of work contract — Even if the dominant intention of the contract is not to transfer the property in goods and rather it is the rendering of service or the ultimate transaction is transfer of immovable property, then also it is open to the States to levy sales tax on the materials used in such contract if it otherwise has elements of works contract.
Rainbow Colour Lab & Anr. v. State of M.P. & Ors.; (2000) 2 SCC 385, State of U.P. & Ors. v. P.N.C. Construction Co. Ltd. & Ors.; (2007) 7 SCC 320, Associated Cement Companies Ltd. v. Commissioner of Customs; (2001) 4 SCC 593 & Bharat Sanchar Nigam Limited and another v. Union of India and others; (2006) 3 SCC 1, Referred.
(Para 64)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Sales Tax Law — Taxable goods — Effect of — Held, taxable event is deemed sale.
(Para 62)
Larsen & Toubro Limited v. State of Karnataka [Bench Strength 3], Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) (26/09/2013), Civil Appeal No. 8672/2013 (Arising out of SLP (C) No. 17741/2007) [R.M. Lodha, J.: J. Chelameswar, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 407 — Transfer of trial from Magistrate to Special Judge — Common accused, witnesses and evidence, Justification for — Appellant, Ex-Director of Animal Husbandry department, being prosecuted for conspiracy to defraud the State Government — Transfer of appellants’ prosecution under FERA/FEMA from Magistrate’s Court to the Court of Special Judge, CBI Animal Husbandry scam cases — Challenge to, contending that since the transfer is to a court that has no jurisdiction to try the offence — Held, in the present case the accused were common, many of the witnesses would be common, and so also their evidence — Administrative power of the High Court in such a situation to effect transfer is upheld — Petition dismissed — Constitution of India — Article 227 — Power of High Court to transfer trial — Foreign Exchange Management Act, 1999 — Sections 56, 64(2) & 9(1)(a) & (b) — Transfer of trial.
Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392, Relied on.
A.S. Impex Ltd. v. Delhi High Court, 107 (2003) DLT 734, Overruled (Distinguished in Mahender Singh v. High Court of Delhi, (2009) 151 Comp Cas 485 (Delhi) & N.G. Sheth v. C.B.I., 151 (2008) DLT 89) Referred.
(Para 17, 20, 22 & 33)
HELD: In so far as the present case is concerned, it is apparent from a reading of Section 56 of the FERA as also Section 61 of the FERA that exclusive jurisdiction has not been conferred on the Magistrate to try cases relating to a violation of the provisions of the FERA. Absent jurisdictional exclusivity, the principle of law laid down in Antulay is not applicable and the Special Judge could have been conferred jurisdiction to try the case against the petitioners.
(Para 33)
Kamlesh Kumar v. State of Jharkhand [Bench Strength 2], Special Leave Petition (Criminal) Nos. 6219-6220/2012 (26/09/2013), Special Leave Petition (Criminal) Nos. 6219-6220/2012 [H.L. Gokhale, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 407 — Transfer of trial from Magistrate to Special Judge — Challenge to legality of, Absence of prejudice to parties, Entertainment of — Transfer of appellants’ prosecution under FERA/FEMA from Magistrate’s Court to the Court of Special Judge, CBI Animal Husbandry scam cases — Held, for an administrative exigency, High Court decided to exercise its plenary administrative power does not per se lead to the conclusion that the transfer of the case from the Magistrate to the Special Judge was unlawful — Legality of the action cannot be called in question since no prejudice has been caused to the petitioners by such a transfer — Dismissed.
Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392, Relied on.
(Para 44)
Kamlesh Kumar v. State of Jharkhand [Bench Strength 2], Special Leave Petition (Criminal) Nos. 6219-6220/2012 (26/09/2013), Special Leave Petition (Criminal) Nos. 6219-6220/2012 [H.L. Gokhale, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 407 — Transfer of trial from Magistrate to Special Judge — Effect on right to agitate before superior forum — Held, right of appeal available to the petitioners in the present case is not taken away by transferring the case from the Magistrate to the Special Judge — Only the forum that has changed — They can now prefer an appeal from the order of the Special Judge to the High Court.
(Para 35)
Kamlesh Kumar v. State of Jharkhand [Bench Strength 2], Special Leave Petition (Criminal) Nos. 6219-6220/2012 (26/09/2013), Special Leave Petition (Criminal) Nos. 6219-6220/2012 [H.L. Gokhale, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 407 — Transfer of trial from Magistrate to Special Judge — Effect on right of revision — Held, transfer of a case from a Magistrate to a Special Judge does not take away procedural facility of revision available to the petitioners — It only changes the forum as petitioners have no right to choose the forum in which to file an appeal or move a petition for revising an interlocutory order.
Pranab Kumar Mitra v. State of West Bengal, 1959(1) Suppl. SCR 63 & Akalu Ahir v. Ramdeo Ram, (1973) 2 SCC 583, Referred.
(Para 48)
Kamlesh Kumar v. State of Jharkhand [Bench Strength 2], Special Leave Petition (Criminal) Nos. 6219-6220/2012 (26/09/2013), Special Leave Petition (Criminal) Nos. 6219-6220/2012 [H.L. Gokhale, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Litigation — Right to choose forum — Denial of — Held, a litigant has neither a right to appeal to a particular forum nor to insist on a particular procedure being followed in his case — Practice and Procedure — Right to choose forum.
Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1953 SCR 118, Union of India v. Sukumar Pyne, AIR 1966 SC 1206, Maria Cristina De Souza Sodder v. Amria Zurana Pereira Pinto, (1979) 1 SCC 92, T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177 & M/s Rai Bahadur Seth Shreeram Durgaprasad v. Director of Enforcement, (1987) 3 SCC 27, Referred.
(Para 36)
Kamlesh Kumar v. State of Jharkhand [Bench Strength 2], Special Leave Petition (Criminal) Nos. 6219-6220/2012 (26/09/2013), Special Leave Petition (Criminal) Nos. 6219-6220/2012 [H.L. Gokhale, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
Practice and Procedure — Revision — Nature of facility of — Held, revision is not a right but only a “procedural facility” available to a party.
(Para 48)
Kamlesh Kumar v. State of Jharkhand [Bench Strength 2], Special Leave Petition (Criminal) Nos. 6219-6220/2012 (26/09/2013), Special Leave Petition (Criminal) Nos. 6219-6220/2012 [H.L. Gokhale, J.: Madan B. Lokur, J.] <<LAWPACK SUPREME COURT>>
T.N. Value Added Tax Act, 2006 — Section 51 — Condition of pre-deposit in appeal — Claim of adjustment/refund, Entertainment of — Appellant preferred an appeal before Deputy Commissioner-I, Commercial Taxes — Non-compliance of condition of pre- deposit, Memorandum of Appeal returned — By impugned order, High Court disposed of petition directing the assessee to comply with all the requirements as intimated by appellate authority in Return Memo on such compliance, appellate authority was directed to register the appeal and dispose of the same in accordance with the law — Challenged contending that amount that was due to the appellant from the department was to be adjusted for the purpose of deposit — Held, appellant shall deposit the amount as required by the Deputy Commissioner-I, Commercial Taxes whereafter the appeal shall be heard and disposed of on merits — As far as the adjustment/refund is concerned, it is open to the appellant to initiate any independent proceeding — Conclusion of Division Bench with regard to the factum that there has been proper adjustment by the Department in respect of the claim made by the assessee is set aside — Appeal is allowed in part and order passed by the Division Bench is modified accordingly.
(Para 7 & 8)
Ranji Impex v. Appellate Deputy Commissioner [Bench Strength 2], C.A. No. 7809/2013 (Arising out of SLP (C) No. 2703/2011) (03/09/2013), 2013(11) SCALE 543 [Anil R. Dave, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
T.N. Value Added Tax Act, 2006 — Section 51 — Appeal — Condition of pre-deposit, Non-compliance with, Effect of — Held, condition to entertain an appeal does not mean that Memorandum of Appeal shall be returned because of such non-compliance pertaining to pre-deposit — Only consequences that appeal shall not be entertained which means the appeal shall not be considered on merits and eventually has to be dismissed on that ground — Constitution of India — Article 136 — Appeal — Condition of pre-deposit, Non-compliance of, Effect of.
(Para 5)
Ranji Impex v. Appellate Deputy Commissioner [Bench Strength 2], C.A. No. 7809/2013 (Arising out of SLP (C) No. 2703/2011) (03/09/2013), 2013(11) SCALE 543 [Anil R. Dave, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
Excise and Customs — Restoration of appeals — Condition of pre-deposit by CESTAT, Delay in depositing lesser amount, Effect of — Appeals before CESTAT dismissed for default, imposing condition of pre-deposit of Rs.2 Crores — Held, in view of the fact that a sum of Rs. one crore has already been deposited by appellants, in the interest of justice, order, whereby appeals of the appellants had been dismissed for not depositing the amount of pre-deposit is set aside — Appeals allowed.
(Para 12 & 13)
Super Industries v. Commissioner of Central Excise & Customs [Bench Strength 2], C.A. Nos. ……/2013 (Arising out of SLP (C) Nos. 27435-37/2013) (09/09/2013), 2013(11) SCALE 547 [Anil R. Dave, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
Civil Procedure Code, 1908 — Order 39 Rules 1 & 2 — Interim relief — Withdrawal of deposited amount in court, Direction for — Appellant filed Suit for declaration alleging forcible removal of food grains from godowns by appellant, without making payment of storage charges and without refunding amount of security deposit — By impugned order, High Court directed respondent-Corporation to remove food grains — Challenged contending that by impugned order, suit filed by appellant would become infructuous — Held, since respondent has already deposited an amount with trial court in pursuance of the order of Court, ends of justice would be served if the respondent is directed to provide security to the satisfaction of the trial court to the extent of fifty per cent of the amount deposited, is permitted to be withdrawn by the appellant without furnishing any security — Appeals allowed.
(Para 8 to 13)
Buildwel Corporation v. Food Corporation of India [Bench Strength 2], C.A. Nos. 8260-8261/2013 (Arising out of SLP (C) Nos. 25074-75/2013) (02/09/2013), 2013(11) SCALE 567 [Anil R. Dave, J.: Dipak Misra, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 32 — Incident of public disorder — Direction to provide minimum amenities to stranded persons — Petition in respect of sufferings of people in the incident of public disorder in Mazaffarnagar — Held, State of U.P. in association with Central Government to take immediate steps and take charge of all persons, who are stranded without food and water and set up relief camps providing all required assistance and are to make adequate arrangements for their stay, till rehabilitation and restoration takes place in their respective places — It is further directed to provide necessary medical treatment to all wounded and needy persons to suitable places — Compliance reports be filed before next date of hearing.
(Para 7 & 8)
Mohd. Harpoon v. Union of India [Bench Strength 3], W.P. (Crl.) No. 155/2013 with W.P. (Crl.) No. 158/2013 (12/09/2013), 2013(11) SCALE 675 [P. Sathasivam, C.J.: Ranjana Prakash Desai, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Article 32 — Incident of public disorder — Relief to stranded persons, Direction to file report on steps for — Petition highlighting the sufferings of people in the incident in Mazaffarnagar — Held, any grievance pertaining to the incident that took place at Muzaffarnagar and nearby places aggrieved persons are to approach only to this Court for necessary relief/directions — In order to ascertain, the further development and the steps taken by both the respondents/ Union of India and State of U.P., Respondent to file further Report — Petitioners as well as others who are aware of more details about sufferings of the people concerned are permitted to hand over all the details to the standing counsel for the State of U.P.
(Para 2, 7 & 8)
Mohd. Haroon v. Union of India [Bench Strength 3], W.P. (Crl.) No. 155/2013 with W.P. (Crl.) No. 158/2013 (19/09/2013), 2013(11) SCALE 676 [P. Sathasivam, C.J.: Ranjana Prakash Desai, J.: Ranjan Gogoi, J.] <<LAWPACK SUPREME COURT>>
Constitution of India — Articles 72 & 161 — Mercy petition — Inordinate delay in disposal of, Effect of — Petition for enhancement of life sentence to death in case of rape of minor followed by murder — Held, nine years have passed after substitution of his death sentence by life imprisonment — This court is reluctantly of the view that it would not be just and proper to alter the sentence from life imprisonment to death at this stage — In future, in order to avoid such contingencies, cases where enhancement of life sentence to death is sought, should be given due priority — Criminal Law — Death — Petition for enhancement of life sentence to, Direction to give priority — Penal Code, 1860 — Section 376 — Death — Petition for enhancement of life sentence to, Direction to give priority.
Triveniben vs. State of Gujarat, (1989)1 SCC 678 Mahendra Nath Das vs. Union of India and Others, (2013)6 SCC 253 & State of Madhya Pradesh vs. Vishweshwar Kol, (2011)11 SCC 472, Referred.
(Para 29 & 33)
HELD: In the present case, the respondent has been awarded life imprisonment under Section 302 of IPC. Under Section 376 of IPC also he has been awarded life imprisonment. The third substantive sentence is under Section 201 of IPC. All these sentences are ordered to run concurrently. The sentence of life imprisonment is till the end of one’s biological life. However, in view of the power of the State under Sections 432 and 433 of Cr.PC, in the present case, we are of the view that the sentences shall run consecutively, in case there is remission or commutation. We further make it clear that the remission or commutation, if considered in the case of the respondent, shall be granted only after the mandatory period of fourteen years in the case of offence under Section 302 of IPC.
(Para 33)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Sections 376 & 302 — Conviction — Plea of influence of alcohol, Whether a mitigating factor? — Rape of minor followed by murder — Held, accused was under the influence of alcohol at the time of the commission of the offence also is not a mitigating factor — Circumstance that he had taken alcoholic drinks at around 10.00 a.m. is also an indicator to the premeditation of the crime shortly thereafter.
(Para 18)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 432 & 433 — Young age of accused — Whether mitigating factor? — Held, accused is young by itself is not a major and deciding factor while considering the mitigating factors.
Dhananjoy Chatterjee vs. State of W.B., (1994)2 SCC 220: (1994) SCC (Cri) 358, Jai Kumar vs. State of M.P., (1999)5 SCC 1: (1990) SCC (cri) 635, Shivu and Another vs. Registrar General, High Court of Karnataka and Another, (2007)4 SCC 713, Vikram Singh and Others vs. State of Punjab, (2010)3 SCC 56, Atbir vs. Government Of NCT of Delhi, (2010)9 SCC 1, Mohd. Ajmal Amir Kasab alias Abu Mujahid vs. State of Maharashtra, (2012)9 SCC 1, State of U.P. vs. Satish, (2005)3 SCC 114, Bantu vs. State of Uttar Pradesh, (2008)11 SCC 113: (2009)1 SCC (Cri) 353 Shivaji alias Dadya Shankar Alhat vs. State of Maharashtra, (2008)15 SCC 269, Mohd. Mannan alias Abdul Mannan vs. State of Bihar, (2011)5 SCC 317 & Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012)4 SCC 37: (2012)2 SCC (Cri) 30, Referred.
(Para 17)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Section 433-A — Imprisonment of life — Period of remission or commutation, Restriction on — Held, when a sentence of imprisonment of life, where death is also one of the punishments provided by law, is remitted or commuted, such person shall not be released unless he has served at least fourteen years of imprisonment.
(Para 34)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 432 & 433 — Remission of minimum sentence — Impermissibility of — Held, minimum sentence provided for any offence cannot be and shall not be remitted or commuted by the Government in exercise of their power under Section 432 or 433 of the Cr.PC.
(Para 35)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 432 & 433 — Remission of sentence in rape cases — Held, in the event of State invoking its powers under Section 432 or 433 of Cr.PC., the sentence under Section 376 of IPC shall not be remitted or commuted before seven years of imprisonment — Penal Code, 1860 — Section 376 — Remission of sentence in rape cases.
(Para 36)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 354(3) & 366 to 371 — Confirmation of death sentence by High Court — Reference of special reasons for, Requirement of — Held, High Court must refer to the special reasons found by the Sessions Court for inclusion of the case in the rarest of rare category.
Bachan Singh vs. State of Punjab, (1980)2 SCC 684, Machhi Singh and Others vs. State of Punjab, (1983)3 SCC 470, Shankar Kisanrao Khade vs. State of Maharashtra, (2013)5 SCC 546, State of Uttar Pradesh vs. Sattan alias Satyendra and Others, (2009)4 SCC 736 Mahesh s/o Ram Narain and Others vs. State of Madhya Pradesh, (1987)3 SCC 80 & Devender Pal Singh vs. State of NCT of Delhi and Another, (2002)5 SCC 234, Referred.
(Para 24)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 366 to 371 — Confirmation of death sentence by High Court — Mandatory requirements for — Discussed.
Kunal Majumdar vs. State of Rajasthan, (2012)9 SCC 320, Referred.
(Para 22)
HELD: These provisions lay down the detailed procedure on confirmation of death sentence. The following are the mandatory requirements:
i) Death Reference shall be heard by a Bench of minimum two Judges. The Chief Justice being the master of roster is free to constitute a Bench of more Judges.
ii) On any point having a bearing on the guilt or innocence of the convicted person, for which there is no clarity, the High Court may,
(a) conduct a further inquiry;
(b) take additional evidence;
(c) may get the inquiry conducted or additional evidence taken by the Sessions Court.
(iii) On the basis also of the inquiry or additional evidence, if any, the High Court may,
a) confirm the death sentence; however, in case the convict has filed an appeal, the same has to be disposed of before passing the order of confirmation; and, no order of confirmation shall be passed until the period allowed for filing an appeal has expired.
b) pass any other sentence;
c) annul conviction;
d) convict the accused of any offence which the Court of Sessions would or could have convicted him.
(iv) Amend the charges.
v) Order fresh trial on charges already framed or on amended charges.
vi) May acquit the accused.
vii) In case the Bench is equally divided in opinion, their opinions shall be laid before a third Judge of that Court and the decision will depend on the opinion of the third Judge.
viii) If the third Judge before whom the opinions have been placed is of opinion that the matter should be heard by a larger Bench of Judges, the reference has to be heard by a larger Bench, in view of the requirement under Section 392 of Cr.PC.
(Para 22)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 432 & 433 — Consideration of mitigating factors — Role of poverty — Held, while considering the mitigating factors, poverty has to be understood in light of whether it was a factor influencing the commission of offence.
Sunil Damodar Gaikwad vs. State of Maharashtra, JT (2013) SC 310, Referred.
(Para 16)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Criminal Procedure Code, 1973 — Sections 432 & 433 — Consideration of mitigating factors — Binding effect of — Held, Court is bound to consider the mitigating factors qua the criminal.
Bachan Singh vs. State of Punjab, (1980)2 SCC 684, Relied on.
(Para 16)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 35 — Punishment of death — Nature of — Held, Death is not an alternate punishment.
(Para 34)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 35 — Punishment — Object and consideration of factors for — Held, punishment has a penological purpose — Reformation, retribution, prevention, deterrence are some of the major factors in that regard.
(Para 35)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 376 — Heinous rape of minors followed by murder — Rarest of rare category — Held, heinous rape of minors followed by murder is one such instance of a crime which shocks and repulses the collective conscience of the community and the Court — Such crimes, which shock the collective conscience of the society by creating extreme revulsion in the minds of the people, are to be treated as the rarest of rare category.
Ajitsingh Harnamsingh Gujral vs. State of Maharashtra, (2011)14 SCC 401, Referred.
(Para 15)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 35 — Imprisonment for life — Period of — Held, imprisonment for life is till the end of the biological life of the person.
Gopal Vinayak Godse vs. The State of Maharashtra and Others, AIR 1961 SC 600, Relied on.
(Para 31)
State of Rajasthan v. Jamil Khan [Bench Strength 2], Criminal Appeal No. 659/2006 (27/09/2013), Criminal Appeal No. 659/2006 [Chandramauli Kumar Prasad, J.: Kurian Joseph, J.] <<LAWPACK SUPREME COURT>>
Penal Code, 1860 — Section 35 — Punishment — Life imprisonment without commutation or remission, Requirement of introduction of — Held, it will do well in case a proper amendment under Section 53 of IPC is provided, introducing one more category of punishment-life imprisonment without commutation or remission.
Jagmohan Singh vs. State of U.P., (1973)1 SCC 20, Shri Bhagwan vs. State of Rajasthan, (2001)6 SCC 296, Prakash Dhawal Khairnar (Patil) vs. State of Maharashtra, (2002)2 SCC 35, Ram Anup Singh and Others vs. State of Bihar, (2002)6 SCC 686, Dilip Premnarayan Tiwari and Another vs. State of Maharashtra, (2010)1 SCC 775, Neel Kumar alias Anil Kumar vs.