MS Godrej Sara Lee Limited Vs Excise and Taxation Officer cum AO and Ors on 01 Feb 2023

Posted on October 25, 2023 by ShadesOfKnife

A division bench of Supreme Court held that, Not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for a Writ’s dismissal.

Further it was held that, A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest.

From Para 4,

4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as “not maintainable” merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the high court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the high courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under Article 226 that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition “not maintainable”. In a long line of decisions, this Court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that “entertainability” and “maintainability” of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of “entertainability” is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.

MS Godrej Sara Lee Limited Vs Excise and Taxation Officer cum AO and Ors on 01 Feb 2023

Citations : [2023 INSC 92], [2023 SCC ONLINE SC 95]

Other Sources :

https://indiankanoon.org/doc/62928741/

https://www.casemine.com/judgement/in/63dc0f95831db01604ba254b

https://www.courtkutchehry.com/Judgement/Search/AdvancedV2?docid=2368646

https://www.indianemployees.com/judgments/details/m-s-godrej-sara-lee-ltd-vs-the-excise-and-taxation-officer-cum-assessing-authority

https://www.verdictum.in/court-updates/supreme-court/godrej-taxation-alternative-remedy-not-absolute-writ-petition-maintainability-entertainability-apex-court-1460513

Godrej Sara Lee Limited Vs The Excise and Taxation officer-cum-Assessing Authority & Ors (Supreme Court)

Mohit Gupta and Ors vs Govt of NCT of Delhi and Anr on 16 Oct 2006

Posted on October 15, 2023 by ShadesOfKnife

A single bench judge at Delhi High Court held that Shivcharan Lal Verma and Anr Vs State of Madhya Pradesh is the precedent that is binding and not the Reema Aggarwal v. Anupam And Others.

From Para 8,

8. These are undoubtedly strong words and clearly show that a person who ostensibly contracts a marriage with a woman and lives with her as husband and wife would also be covered within the meaning of the expression “husband” used in Section 498-A IPC. But the matter does not stop here. The Supreme Court, in the case of Shivcharan Lal Verma (supra), which is a decision of a three-judge bench, was of the contrary view. The facts in that case were that during the lifetime of the first wife, Shivcharan married for the second time. But after the marriage both the first wife and Shivcharan tortured the second wife as a result of which she ultimately committed suicide by burning herself. The incident occurred inside the house while Shivcharan and his first wife were in one room and the second wife was in the other. One of the questions which arose before the Supreme Court was whether the provisions under Section 498-A can at all be attracted since the marriage with the second wife itself was null and void, the same having been performed during the lifetime of the first wife. In answer to this question the Supreme Court observed that there was considerable force in the argument of the learned Counsel for the appellant that so far as conviction under Section 498-A was concerned, inasmuch as the alleged marriage with the second wife, during the subsistence of a valid marriage with the first wife, was null and void, the same cannot be sustained. The Supreme Court therefore set aside the conviction and sentence under Section 498-A IPC. Going by this a decision, it is clear that the Supreme Court was of the view that as the second marriage was null and void, Shivcharan could not be regarded as a “husband” within the meaning ascribed to it under Section 498-A IPC. Although the learned Counsel for the respondent had, as noted above, made submissions to the effect that this was not a binding precedent, I don’t see as to how this is would not constitute a binding precedent. The point in issue arose out of the facts of the case. It was specifically raised and specifically answered. The ratio of the decision is that a male partner to a null marriage cannot be covered by the expression “husband” as appearing in Section 498-A IPC. It is another thing that the Supreme Court in the case of Shivcharan Lal Verma (supra) did not discuss this question with the same degree of elaboration as in the case of Reema Aggarwal (supra). But, this by itself cannot be construed to mean that in Shivcharan lal Verma (supra), the Supreme Court did not consider the entire scope and ambit of the provisions of Section 498-A IPC. It must also be pointed out that the decision in Shivcharan Lal Verma (supra) has not been noticed in Reema Aggarwal (supra) although the latter decision is later in point of time. So, the decision in Reema Aggarwal (supra) has to be regarded as per incuriam. The second point that has to be kept in mind is that the decision in Shivcharan Lal Verma (supra) has been rendered by a bench of three honourable judges whereas the decision in the case of Reema Aggarwal (supra) is by a bench of two honourable judges. Clearly, the decision in Shivcharan Lal Verma (supra) would be binding. In this context it would be pertinent to note the observations of a Constitution Bench decision of the Supreme Court in the case of P. Ramachandra Rao v. State of Karnataka (2002) 5 SCC 578 wherein the Supreme Court observed [at para 28]:
The well settled principle of precedents which has crystallised into a rule of law is that the bench of lesser strength is bound by the view expressed by a bench of larger strength and cannot take a view in departure or in conflict there from.
Therefore the decision in Shivcharan Lal Verma (supra) will clearly take precedence over the decision in Reema Aggarwal (supra).

Indiankanoon version:

Mohit Gupta and Ors vs Govt of NCT of Delhi and Anr on 16 Oct 2006 (IK ver)

Casemine version:

Mohit Gupta and Ors vs Govt of NCT of Delhi and Anr on 16 Oct 2006 (CM ver)

Citations: [2007 AD DEL 1 503], [2007 DRJ 93 606], [2006 DLT 135 390], [2007 DMC 1 47], [2006 SCC ONLINE DEL 1256], [2006 JCC 3 1923], [2007 JCC 3 1923]

Other Sources:

https://indiankanoon.org/doc/338837/

https://www.casemine.com/judgement/in/56090c14e4b0149711176259

Mohit Gupta And Ors. vs State Govt. Of Nct Of Delhi And Anr. on 16 October, 2006

Index of Quash judgements is here and HMA Judgments is here.

Bimla Tiwari Vs State of Bihar and Ors on 16 Jan 2023

Posted on October 12, 2023 by ShadesOfKnife

In this reportable decision of Supreme Court, it was held that the process of criminal law, particularly in matters of grant of bail, is not akin to money recovery proceedings. Recovery of money is essentially within the realm of civil proceedings.

From Paras 9-11,

9. We have indicated on more than one occasion that the process of criminal law, particularly in matters of grant of bail, is not akin to money recovery proceedings but what has been noticed in the present case carries the peculiarities of its own.
10. We would reiterate that the process of criminal law cannot beutilised for arm-twisting and money recovery, particularly while opposing the prayer for bail. The question as to whether pre-arrest bail, or for that matter regular bail, in a given case is to begranted or not is required to be examined and the discretion isrequired to be exercised by the Court with reference to the material on record and the parameters governing bail considerations. Putting it in other words, in a given case, theconcession of pre-arrest bail or regular bail could be declined even if the accused has made payment of the money involved oroffers to make any payment; conversely, in a given case, the concession of pre-arrest bail or regular bail could be granted irrespective of any payment or any offer of payment.
11. We would further emphasize that, ordinarily, there is nojustification in adopting such a course that for the purpose of being given the concession of pre-arrest bail, the personapprehending arrest ought to make payment. Recovery of money is essentially within the realm of civil proceedings.

From Para 15,

15. Thus, it is noticed that these criminal proceedings are being prosecuted only as money recovery proceedings. We have expressed reservations even as regards the aforesaid order dated 10.03.2022, wherein the High Court has proceeded on the propositions of offer made by the co-accused of payment of the sum of Rs.6,00,000/- (six lakhs) and acceptance thereof by the informant (present petitioner). However, since the said order is not before us, we would refrain from making any directions in that regard and else, in our view, even the said order too, on the proposition of granting bail with reference to payment, has its own shortcomings.
16. Even when we are not modifying the condition in the said order dated 10.03.2022 for the same being not before us, so far as the impugned order dated 14.11.2022 is concerned, in our view, it shall be in the interest of justice to annul the requirement of payment of a sum of Rs. 75,000/- (seventy-five thousand) by the accused-respondent No. 2. Hence, the order granting pre-arrest bail to the respondents stands affirmed but, the condition therein, of payment of Rs.75,000/- (seventy-five thousand) by the respondent No.2, stands annulled.

Bimla Tiwari Vs State of Bihar and Ors on 16 Jan 2023

Index of all Bail Matters is here.

Abbayolla M. Subba Reddy Vs Padmamma on 27 Jul 1998

Posted on October 5, 2023 by ShadesOfKnife

Abbayolla M. Subba Reddy Vs Padmamma on 27 Jul 1998 (CK)

Citations:

Other Sources:

https://indiankanoon.org/doc/19292/

S.P. Mani and Mohan Dairy Vs Dr Snehalatha Elangovan on 16 Sep 2022

Posted on August 12, 2023 by ShadesOfKnife

Om Prakash Sharma Vs State of MP on 25 Mar 2021

Posted on August 9, 2023 by ShadesOfKnife

A single judge bench at Gwalior of Madhra Pradesh High Court held as follows,

From Para 5,

5. The aforesaid decisions of the Apex Court in Suresh Chand Jain & Sakiri Vasu (supra) have held the field till date which is evident from perusal of following subsequent verdict of Apex Court rendered after relying upon Sakiri Vasu with approval.
6. In the instant case, as informed by learned counsel for petitioner, no offence has yet been registered by the police. It is also informed that the concerned police station has not yet given any report to the learned Magistrate despite repeated reminders. It is also not denied that the learned Magistrate has not proceeded to record statement of the complainant u/S.200 Cr.P.C. Therefore, in sum and substance, the entire matter hangs fire and is in a state of suspended animation leaving the petitioner-complainant high and dry with no hope of justice coming his way.

From Para 9.1

9.1 Thus, it is incumbent upon the Magistrate u/S.156(3) Cr.P.C. to not only direct for registration of cognizable offence wherever it is found to be not registered by the Police but also to ensure that theinvestigation conducted by the police is fair, expeditious and without any element of prejudice towards anyone, with the sole object ofreaching the truth. The role of the Magistrate u/S.156(3) Cr.P.C. is thus of great significance. Prompt and appropriate exercise of poweru/S.156(3) Cr.P.C. can, not only bring succor to the victim but also to the society at large by bringing the delinquent to the book and in theprocess instilling enough fear in the mind of the miscreant so as to dissuade him from indulging in delinquency again.

From Paras 15-20

Law laid down:
(1) The guidelines laid down for the Magistrates for adjudication of application u/S.156(3) Cr.P.C. complaining about delayed/improper investigation filed along with complaint u/S.200 Cr.P.C.
(2) The complaint u/S.200 Cr.P.C. filed along with 156(3) application need not be kept pending owing to bar contained in Sec.210 Cr.P.C. for more than 60/90 days or any other longer period statutorily provided on expiry of which the police fails to file the final report u/S.173(1) Cr.P.C.
(3) On failure of police to file final report u/S.173(1) Cr.P.C. within 60/90 days or any other longer period statutorily provided, the Magistrate to prevent the complaint u/S.200 Cr.P.C. from suffering a state of stalemate, should proceed by invoking powers contained in Chapter XV and XVI Cr.P.C.
If during pendency of proceedings under Chapter XV and XVI Cr.P.C., invoked as above, Police files the final report then the final report and the complaint case both should proceed as if both have arisen out of police report.

Om Prakash Sharma Vs State of MP on 25 Mar 2021

Citations:

Other Sources:

https://indiankanoon.org/doc/55499395/

https://www.indianemployees.com/judgments/details/om-prakash-sharma-vs-state-of-m-p-and-another

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990

Posted on August 6, 2023 by ShadesOfKnife

A single judge from Gauhati High Court held as follows,

From Paras 11, 12 and 13,

11. Under Chapter XXXII, Section 401 of the Code provides that. “Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.” The proviso to section 431 is not relevant here. The order for payment of maintenance was an order under the code for payment of money, for the recovery of which no method had been expressly provided. Accordingly, under section 431 of the code, I think the maintenance; money could be recovered, as if it were fine.
12. Section 421 of the Code provides for recovery of fine and the procedure laid down for the purpose was by issue of warrant for attachment and sale of any movable property belonging to offender in this case the present petitioner (opposite party in the maintenance proceeding) or issue of warrant to the Collector of the District, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: The provision to Section 421 clearly stipulates that “no such warrant shall be executed by the arrest or detention in prison of the offender.”
13. On consideration of the above provisions, there should be no doubt that for recovery of money as maintenance which has to be in accordance with the procedure for recovery of fine no warrant of arrest or detention of the petitioner could have been ordered. I, therefore think that the impugned order dated 1.9.89 was clearly erroneous and has to be set aside.

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990 (IndianKanoon Ver)

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990 (Casemine Ver)

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990 (LegalData Ver)

Citations: [1990 GAULR 2 328], [1991 CRLJ 1843], [1990 SCC ONLINE GAU 36], [1990 GAU LR 2 328], [1991 CRI LJ 1843]

Other Sources:

https://indiankanoon.org/doc/1507653/

https://www.casemine.com/judgement/in/56eaaa49607dba3c8ce3ef96

https://legaldata.in/court/read/2541018

Asfaq Alam Vs State of Jharkhand and Anr on 31 Jul 2023

Posted on August 5, 2023 by ShadesOfKnife

Asfaq Aslam Vs State of Jharkhand and Anr on 31 Jul 2023

N Rajeev Vs C Deepa on 26 July 2023

Posted on July 30, 2023 by ShadesOfKnife

A single judge from Bengaluru bench of Karnataka High Court held as follows,

From Paras 2 and 3,

2. Notice to respondent spouse is dispensed with since no order adverse to her interest is being made and further she will have full opportunity of participation in the trial of the subject case at the hands of the court below. Added, she too will have the advantage of early disposal.
3. Having heard the learned counsel for the petitioner and having perused the Petition Papers, this Court is broadly in agreement with the proposition that the matrimonial causes should be tried & disposed off on a war footing, at least as a concession to the shortness of human life. It was Thomas Carlyle (1795-1881), a British historian of great repute who had said: “Life is too short to be little”. When a matrimonial case involves the prayer for the dissolution/nullity of marriage, courts should make all efforts to try & dispose off the same within an outer limit of one year, so that in the event of granting such a decree, the parties may restructure their lives. It hardly needs to be stated ‘life is lost in living’. Delay in disposal of such cases very badly affects the parties thereto, needs no deliberation.
In the above circumstances, learned Family Court Judge is requested to accomplish the trial & disposal of the subject seven year old case preferably within an outer limit of three months, all contentions having been kept open.
The Registrar General of this court is instructed to circulate this judgment in all the concerned circles so that other similarly circumstanced litigants may not unnecessarily knock at the doors of this court seeking a direction for the expeditious disposal of their cases.
Registry to send a copy of this judgment to the respondent-wife by Speed Post, immediately.

N Rajeev Vs C Deepa on 26 July 2023

Citations:

Other Sources:

https://indiankanoon.org/doc/102000202/

https://www.casemine.com/judgement/in/64c14eeb843b5e67363850e6

https://www.verdictum.in/court-updates/high-courts/karnataka-hc-courts-should-make-all-efforts-to-try-dispose-of-cases-involving-dissolution-of-marriage-within-one-year-1486930

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986

Posted on July 26, 2023 by ShadesOfKnife

A single judge of Delhi High Court held as follows,

From Paras 18 to 26,

18. Under Section 12 (1) (a), therefore, the requisite is that ordinary and complete sexual intercourse has not taken place between the parties owing to the impotence of the respondent. The words ‘impotence of the respondent’ would, to my mind, mean incapacity of the respondent to have sexual intercourse. The Supreme Court has said in Digvijay Singh v. Pratap Kumari, AIR 1970 SC 137, that “A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility”.
19. As stated above, consummation means capacity to have ‘ordinary and complete sexual intercourse’. The above stated observation of the Supreme Court in AIR 1970 SC 137, therefore, must mean that a party is impotent if his or her mental or physical condition is such, that practically speaking, it is impossible for him or her to have ordinary and complete sexual intercourse. In the instant case it is instant case it is stated by the appellant in her deposition that the respondent was unable to have any, even a partial or incipient, sexual intercourse with the appellant.
20. Respondent has himself written in his diary Ex. PW1/2, that the is a Homosexual. The appellant has stated in her deposition that the respondent told her that he was a homosexual, that he was unable “to perform sexual intercourse with me and with females in general”. In other words, the respondent was incapable of having Hetrosexual intercourse with any woman.
21. As sexual intercourse essentially has two participants, it must be ordinary and complete for both the participants, individually, and together as a marital unit. For the man participant sexual intercourse is complete when he has an orgasm and for a woman participant sexual intercourse is complete when she has an orgasm (See Encyclopaedia Brittanica: 15th Ed: 1968; Macropaedia, Vol. 16, p. 594: Sexual Response).
22. No sexual intercourse has been taken place between the parties, there is no question is this case whether sexual intercourse was ordinary any complete.
23. In this case there is unrebutted evidence of the petitioner that no sexual intercourse has taken place between the parties. As no sexual intercourse has taken place between the parties, in this case, the requirements of Section 12(1) (a) of the Act are satisfied.
24. In the above view of the matter no purpose would be served by remitting the case back to the District Judge, as in my view, there is no reason why the statement given by the wife ought not to be accepted.
25. I am of the view that in view of her statement recorded in the court, the wife is entitled to a decree of nullity of marriage on the ground mentioned under Section 12(1)(a) of the Act and the judgment of the Additional District Judge needs to be set aside which is hereby set aside.
26. A decree of nullity of marriage is granted to the wife under section 12(1)(a) of the Hindu Marriage Act.

Indian Kanoon Version:

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986 (IK Version)

Casemine Version:

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986 (CM Version)

Supreme Today Version:

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986 (ST Version)

Legal Data Version:

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986 (LD Version)

Citations: [1986 DMC 2 65], [1986 DRJ 10 286], [1986 SCC ONLINE DEL 42], [1987 PLR DEL 91 12], [1986 AIR DELHI 399], [1986 ILR DELHI 2 659]

Other Sources:

https://indiankanoon.org/doc/913344/

https://www.casemine.com/judgement/in/560909b5e4b01497111707b8

https://legaldata.in/court/read/6288

Shades of Knife

True Colors of a Vile Wife

Tag: Reportable Judgement or Order

MS Godrej Sara Lee Limited Vs Excise and Taxation Officer cum AO and Ors on 01 Feb 2023

Mohit Gupta and Ors vs Govt of NCT of Delhi and Anr on 16 Oct 2006

Bimla Tiwari Vs State of Bihar and Ors on 16 Jan 2023

Abbayolla M. Subba Reddy Vs Padmamma on 27 Jul 1998

S.P. Mani and Mohan Dairy Vs Dr Snehalatha Elangovan on 16 Sep 2022

Om Prakash Sharma Vs State of MP on 25 Mar 2021

Hazi Abdul Khaleque Vs Mustt Samsun Nehar on 20 Aug 1990

Asfaq Alam Vs State of Jharkhand and Anr on 31 Jul 2023

N Rajeev Vs C Deepa on 26 July 2023

Moina Khosla Vs Amardeep Singh Khosla on 31 Jan 1986