Whether the income from the use of “Global Telecommunication Facility” cannot be taxed in India

Supreme Court today in a judgement decided which came as appeal to decide on the matter "Whether the High Court is correct in holding that the income from the use of Global Telecommunication Facility called 'Maersk Net' can be classified as income arising out of shipping business and not as fees for technical services?”

There was a foreign company, a tax resident of Denmark, engaged in the shipping business. There is a Double Taxation Avoidance Agreement between India and Denmark. The Company had several agents working for booking cargo and were acting as clearing agents for the foreign company. As the company was in the business of shipping it had several agents in various countries for booking of cargo and servicing customers in those countries, preparing documentation etc. through these agents.
In the present case, a common facility of using Maersk Net System is provided to all the agents across the countries to carry out their work using the said system.

After taking note of Section 19 of the Income Tax Act,1961 and explanation 2 thereof which defines fee for technical services, the Court went on to describe the meaning of the said expression in the following manner:

“What meaning should be ascribed to the words “technical services” appearing in Explanation 2 to clause (vii) to Section 9(1) of the Act is the moot question. In CIT v. Bharti Cellular Ltd. [CIT v. Bharti Cellular Ltd., (2014) 6 SCC 401 : (2011) 330 ITR 239] this Court has observed as follows: (SCC p. 402, para 5) “5. Right from 1979, various judgments of the High Courts and Tribunals have taken the view that the words “technical services” have got to be read in the narrower sense by applying the rule of noscitur a sociis, particularly, because the words “technical services” in Section 9(1)(vii) read with Explanation 2 comes in between the words “managerial and consultancy services”.

“Managerial and consultancy services” and, therefore, necessarily “technical services”, would obviously involve services rendered by human efforts. This has been the consistent view taken by the courts including this Court in Bharti Cellular Ltd. [CIT v. Bharti Cellular Ltd., (2014) 6 SCC 401 : (2011) 330 ITR 239] However, it cannot be lost sight of that modern day scientific and technological developments may tend to blur the specific human element in an otherwise fully automated process by which such services may be provided. The search for a more effective basis, therefore, must be made.

A reading of the very elaborate order of the assessing officer containing a lengthy discourse on the services made available by the Stock Exchange would go to show that apart from facilities of a faceless screen based transaction, a constant upgradation of the services made available and surveillance of the essential parameters connected with the trade including those of a particular/single transaction that would lead credence to its authenticity is provided for by the Stock Exchange. All such services, fully automated, are available to all members of the Stock Exchange in respect of every transaction that is entered into. There is nothing special, exclusive or customised service that is rendered by the Stock Exchange. “Technical services” like “managerial and consultancy service” would denote seeking of services to cater to the special needs of the consumer/user as may be felt necessary and the making of the same available by the service provider. It is the above feature that would distinguish/identify a service provided from a facility offered. While the former is special and exclusive to the seeker of the service, the latter, even if termed as a service, is available to all and would, therefore, stand out in distinction to the former. The service provided by the Stock Exchange for which transaction charges are paid fails to satisfy the aforesaid test of specialised, exclusive and individual requirement of the user or consumer who may approach the service provider for such assistance/service. It is only service of the above kind that, according to us, should come within the ambit of the expression “technical services” appearing in Explanation 2 to Section 9(1)(vii) of the Act. In the absence of the above distinguishing feature, service, though rendered, would be mere in the nature of a facility offered or available which would not be covered by the aforesaid provision of the Act.

There is yet another aspect of the matter which, in our considered view, would require a specific notice. The service made available by the Bombay Stock Exchange [BSE Online Trading (BOLT) System] for which the charges in question had been paid by the appellant assessee are common services that every member of the Stock Exchange is necessarily required to avail of to carry out trading in securities in the Stock Exchange. The view taken by the High Court that a member of the Stock Exchange has an option of trading through an alternative mode is not correct. A member who wants to conduct his daily business in the Stock Exchange has no option but to avail of such services. Each and every transaction by a member involves the use of the services provided by the Stock Exchange for which a member is compulsorily required to pay an additional charge (based on the transaction value) over and above the charges for the membership in the Stock Exchange. The above features of the services provided by the Stock Exchange would make the same a kind of a facility provided by the Stock Exchange for transacting business rather than a technical service provided to one or a section of the members of the Stock Exchange to deal with special situations faced by such a member(s) or the special needs of such member(s) in the conduct of business in the Stock Exchange. In other words, there is no exclusivity to the services rendered by the Stock Exchange and each and every member has to necessarily avail of such services in the normal course of trading in securities in the Stock Exchange. Such services, therefore, would undoubtedly be appropriate to be termed as facilities provided by the Stock Exchange on payment and does not amount to “technical services” provided by the Stock Exchange, not being services specifically sought for by the user or the consumer. It is the aforesaid latter feature of a service rendered which is the essential hallmark of the expression “technical services” as appearing in Explanation 2 to Section 9(1)(vii) of the Act.”

Read the full judgement here.

Constitutional and Legal Rights of Women In India

We often talk about women empowerment and yet we hear cases everyday against women in India. In a recent judgement also, Bombay High Court has quoted that the youth of this country must be taught law to avoid increasing criminal cases in the country.
There are some constitutional rights which is guarded by the Supreme Court of India and then there are some legal rights of the women which can be enforced by any courts in India having jurisdiction to enforce and provide remedy in case of prejudice.

Constitutional Rights:

The Constitution of India has some special provisions through which women in India are provided special constitutional rights. Some are in the form of Fundamental Rights and some are in the form of Fundamental Duties on every citizen. They are: 

1. Article 15 of the constitution provides that "The state shall not discriminate against any citizen of India on the ground of sex". It further empowers the State to make any law which ensures that the right of a woman is not infringed.
2. Article 16 puts restrictions on the state to make sure that any government office or department does not employ any one on the grounds of sex or that the women are deprived of their right to employment in a government office based on sex.
3. Article 23 strictly prohibits Human Trafficking and forced labour. Any one found of this offence will be prosecuted with serious charges under different sections of Indian Penal Code.
4. Article 39 is to provide equal opportunity to both men and women and to provide equal means of livelihood. This article provides a very important right "Equal Pay For Equal Work".
5. Article 42 guarantees every women the right to maternity relief and provides liability on the state to ensure the right is not prejudiced. 
6. Article 51-A(e) puts a liability on every citizen of India in the form of Fundamental Duties. Every citizen of India has a duty to renounce practices derogatory to the dignity of women.

Apart from the above mentioned Constitutional Rights of Women, there are other provisions in the constitution too which ensures reservation of seats in different government bodies for women.

Legal Rights:

From time to time the parliament and the state legislative assembly pass different acts and laws in respect of the women safety and security which in the form of Legal Rights the women exercise. If they are deprived of their legal rights, the State sets up several forms of remedy to ensure justice is delivered.

Some of the enactments are: 

Protection of Women from Domestic Violence Act (2005)

Immoral Traffic (Prevention) Act (1956)

Indecent Representation of Women (Prohibition) Act (1986)

Dowry Prohibition Act (1961)

Medical Termination of Pregnancy Act (1971)

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (1994)

Dissolution of Muslim Marriages Act (1939)

and there are a list of many more. Several provisions of Indian Penal Code also ensures that any crime against women will be dealt with severity and harsher punishment will be passed to the culprit.

Many recent judgements have also shown that the courts come upon very hard when it comes to the crime against women.

One cannot be a beneficiary of his own wrongs: Supreme Court

Supreme Court decided on a crucial case of custody of a child between the divorced couple and pronounced the judgement in the favor of the Father. While deciding the matter the court observed various factors and circumstances of the case. The Court stated that "it becomes, at times, a difficult choice for the court to decide as to whom the custody should be given. No doubt, paramount consideration is the welfare of the child. However, at times the prevailing circumstances are so puzzling that it becomes difficult to weigh the conflicting parameters and decide on which side the balance tilts".

The couple married sometime in the year 1999. They lived in Faridabad for a short while and thereafter the couple shifted to U.K. soon. A girl child was born to them in the U.K. Soon after when their relationship did not go well, they filed divorce petition in the court of U.K and around the same time the man who had shifted to India also obtained the decree of divorce in Indian court. The girl remained with the father since the legal battle started and the court also decided the matter in his favor.

The case came up before the Supreme Court when the couple's daughter, Vaishali, was 11 years of age, the Bench (comprising of Aftab Alam and Ranjana Prakash Desai, JJ.) decided to meet Vaishali in order to interact with her to ascertain her view point. After meeting her the bench passed the order which stated “In the proceedings held on January 31, 2013, it was agreed between the parties and was also noted in the order passed on that date that the child Vaishali should stay with respondent No.1 (Sukriti Arora), the mother of the child at her residence in Delhi for one month under monitoring by this Court. In continuation of that order, therefore, we direct that Vaishali should stay with her mother, tentatively for one month from today, subject to any further direction that may be passed by this Court in the meanwhile. Ms. Madhavi Divan, one of the counsel representing the petitioner shall hand over the child to her mother-respondent No.1 outside the court room after we complete the passing of this order. Respondent No.1 shall deposit her passport with the Registrar (J-III) of this Court which shall be returned back to her after Vaishali goes back to her father on completion of the term of her stay with respondent No.1. We are informed that Vaishali's school is reopening from April 4, 2013. On behalf of Respondent No.1, it is stated that she will ensure that the child reaches the school in time and is brought back to her residence after school hours. The child's stay with her mother will, in no way, affect her attendance at the school or her studies.

During her stay with the mother, the child will be free to speak to her father on telephone. On behalf of respondent No.1, it was stated that she would not create any obstruction in the way of the child speaking to her father. During the child's stay with her mother, we would like some responsible and competent person to monitor the arrangement. We, accordingly, request Mrs. Sadhana Ramachandran, who works for the Delhi High Court Mediation and Conciliation Centre, to monitor the arrangement on behalf of this Court. Mrs. Ramachandran shall visit the mother and the child at the address noted above on a date and time of her convenience. She would inform respondent No.1 on her mobile phone about the proposed date and time of her visit to the respondent's place. She would see how the relationship between the child and the mother is developing and if need be, she would counsel both the child and the mother. If the father wants to visit the child while she is staying with her mother, he may do so at a time when Mrs. Sadhana Ramachandran is also present there. For the purpose of the visit he will have to take the necessary permission from Mrs. Ramachandran. It is submitted on behalf of Respondent No.1 that she would like to take the child to some resort or some hill station for a brief holiday. We would like the mother and the child to stay in Delhi itself but, in case, both the child and the mother together wish to go outside, they may do so subject to the permission in writing taken from Mrs. Ramachandran. Mrs. Ramachandran would submit a report to this Court within ten days from today. Let this matter be listed for further direction along with the report from Mrs. Ramachandran on April 12, 2013.”

The Hindu Minority and Guardianship Act, 1956 lays down the principles on which custody disputes are to be decided. Section 7 of this Act empowers the Court to make order as to guardianship. Section 17 enumerates the matters which need to be considered by the Court in appointing guardian and among others, enshrines the principle of welfare of the minor child. This is also stated very eloquently in Section 13.

The appellant argued that the child is living since long with the father. The court in response to the argument stated that "The argument is attractive. But the same overlooks a very significant factor. By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be a beneficiary of his own wrongs. The High Court has referred to these aspects in detail in the impugned judgments.”

Read the full judgement here.

Now if you search for these keywords in India, there will be “auto block” with a warning and nothing would be reflected in the internet

Supreme Court while hearing the case ordered with a list of key words in respect of which when commands are given in the search engines, there will be “auto block” with a warning and nothing would be reflected in the internet, as it is prohibited in India. The Court had earlier asked the three companies Google, Yahoo and Microsoft Whether they are ready to publish a “Warning Message” on top of search result, as and when any user in India submits any “key word searches” in search engines, which relates to pre conception and pre-natal determination of sex or sex selection?

The court after listening to the councils of the parties and also the council for the Government regarding the matter ordered that all the three Companies are bound to develop a technique so that, the moment any advertisement or search is introduced into the system, that will not be projected or seen by adopting the method of “auto block”. To clarify, if any person tries to avail the corridors of these companies, this devise shall be adopted so that no one can enter/see the said advertisement or message or anything that is prohibited under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
The Solicitor General Ranjeet Kumar submitted a list of keywords which relates to pre natal sex determinations.

The present litigation projects, a dilemma for the search engine companies, although court was unable to perceive any such dilemma. Since 2001, the Supreme Court has expressed its concern with regard to reduction of sex ratio in this country. It has gone to the extent of stating that when there is decrease in sex ratio, it is a disaster signal to the mankind. The Court had earlier in a previous case observed that "Before parting with the case, let it be stated with certitude and without allowing any room for any kind of equivocation or ambiguity, the perception of any individual or group or organization or system treating a woman with inequity, indignity, inequality or any kind of discrimination is constitutionally impermissible. The historical perception has to be given a prompt burial. Female foeticide is conceived by the society that definitely includes the parents because of unethical perception of life and nonchalant attitude towards law. The society that treats man and woman with equal dignity shows the reflections of a progressive and civilized society. To think that a woman should think what a man or a society wants her to think is tantamounts to slaughtering her choice, and definitely a humiliating act. When freedom of free choice is allowed within constitutional and statutory parameters, others cannot determine the norms as that would amount to acting in derogation of law. Decrease in the sex ratio is a sign of colossal calamity and it cannot be allowed to happen. Concrete steps have to be taken to increase the same so that invited social disasters do not befall on the society. The present generation is expected to be responsible to the posterity and not to take such steps to sterilize the birth rate in violation of law. The societal perception has to be metamorphosed having respect to legal postulates.”

The present writ petition was filed in 2008 by a doctor in the field of Public Health and Nutrition, expressing his concern about the modus operandi adopted by the search engine companies to act in detriment to the fundamental conception of balancing of sex ratio by entertaining advertisements, either directly or indirectly or as alleged, in engaging themselves in violation of Section 22 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for brevity, 'the 1994 Act'). Times without number, this Court has dwelt upon how to curb the said malady. In pursuance of our orders dated 5th July, 2016 and 25th July, 2016, an affidavit was filed by the competent authority of the Ministry of Electronics and Information Technology (MeitY), Government of India.

Be it noted, when the matter was taken up on 19th September, 2016, it was submitted by Mr. Ranjit Kumar, learned Solicitor General that a meeting was held with the three software companies, namely, Google India Private Limited, Yahoo ! India and Microsoft Corporation (I) Pvt. Ltd. and the companies were asked to respond to certain questions.

The responses to those questions were given by them and after analyzing, the court passed the order which stated "“Explaining the same, it is submitted by the learned Solicitor General that all the three Companies are bound to develop a technique so that, the moment any advertisement or search is introduced into the system, that will not be projected or seen by adopting the method of “auto block”. To clarify, if any person tries to avail the corridors of these companies, this devise shall be adopted so that no one can enter/see the said advertisement or message or anything that is prohibited under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, 'the Act'), specifically under Section 22 of the said Act."

“At this stage, pending that debate, in addition to the earlier directions passed by this Court, we direct that the Union of India shall constitute a “Nodal Agency” and give due advertisement in television, newspapers and radio by stating that it has been created in pursuance of the order of this Court and anyone who comes across anything that has the nature of an advertisement or any impact in identifying a boy or a girl in any method, manner or mode by any search engine shall be brought to its notice. Once it is brought to the notice of the Nodal Agency, it shall intimate the concerned search engine or the corridor provider immediately and after receipt of the same, the search engines are obliged to delete it within thirty-six hours and intimate the Nodal Agency. Needless to say, this is an interim arrangement pending the discussion which we have noted herein-before. The Nodal Agency shall put the ultimate action taken by the search engine on its website.”

After the order by the court, the ministry setup a single point contact for the Nodal Agency to receive the complaints on violation of Section 22 of PC & PNDT Act, 1994. Details of the Nodal Agency are as under:- (i) Contact e-mail address for nodal agency: pcpndtcomplaints@nihfw.org (ii) Nodal Officer: Dr. Chetan Chouhan, Senior Medical Officer (iii) E-mail id and Mobile number of Nodal Officer: chetanchouhan@nihfw.org, 9818305703 (iv) Alternative Nodal Officer and contact details: Dr. Geetanjaly Singh, Senior Medical Officer E-mail: geetanjaly@nihfw.org Mobile No.9968545794

Read the full judgement here.

The word ‘Free’ used in Article 301 of The Constitution of India does not mean “free from taxation”: Constitution Bench of Supreme Court

In the case of JINDAL STAINLESS LTD.& ANR. V/S STATE OF HARYANA & ORS. the Constitution Bench of Supreme Court including the former CJI T. S. Thakur has answered the reference in the following terms:

1. Taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India. The word ‘Free’ used in Article 301 does not mean “free from taxation”.

2. Only such taxes as are discriminatory in nature are prohibited by Article 304(a). It follows that levy of a non-discriminatory tax would not constitute an infraction of Article 301.

3. Clauses (a) and (b) of Article 304 have to be read disjunctively.

4. A levy that violates 304(a) cannot be saved even if the procedure under Article 304(b) or the proviso there under is satisfied.

5. The compensatory tax theory evolved in Automobile Transport case and subsequently modified in Jindal’s case has no juristic basis and is therefore rejected.

6. Decisions of this Court in Atiabari, Automobile Transport and Jindal cases (supra) and all other judgments that follow these pronouncements are to the extent of such reliance over ruled.

7. A tax on entry of goods into a local area for use, sale or consumption therein is permissible although similar goods are not produced within the taxing state.

8. Article 304 (a) frowns upon discrimination (of a hostile nature in the protectionist sense) and not on mere differentiation. Therefore, incentives, set-offs etc. granted to a specified class of dealers for a limited period of time in a non-hostile fashion with a view to developing economically backward areas would not violate Article 304(a). The question whether the levies in the present case indeed satisfy this test is left to be determined by the regular benches hearing the matters.

9. States are well within their right to design their fiscal legislations to ensure that the tax burden on goods imported from other States and goods produced within the State fall equally. Such measures if taken would not contravene Article 304(a) of the Constitution. The question whether the levies in the present case indeed satisfy this test is left to be determined by the regular benches hearing the matters.

10. The questions whether the entire State can be notified as a local area and whether entry tax can be levied on goods entering the landmass of India from another country are left open to be determined in appropriate proceedings.

Read the full judgement here.

FLAG CODE OF INDIA, 2002 - The Law related to the Display of The Indian National Flag

Source MHA GOI: There is a universal affection and respect for, and loyalty to, the National Flag. Yet we often notice lack of awareness among people and also government organisations and agencies relating to the laws that regulate the practice and conventions that apply to the display of the National Flag.
The display of the National Flag is governed by the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950 and The Prevention of Insults to National Honour Act, 1971.
Flag Code of India, 2002 is an attempt to bring together all such laws, conventions, practices and instructions for the guidance of display of the National Flag of India.

The Indian National flag represents the hopes and aspirations of the people ofIndia. It is the symbol ofour national pride. Over the last five decades, several people including members of armed forces have ungrudgingly laid down their lives to keep the tricolour flying in its full glory.

Dr. S. Radhakrishnan in the constituent assembly explained-"Bhagwa or the saffron colour denotes renunciation of disinterestedness. Our leaders must be indifferent to material gains and dedicate themselves to their work. The white in the centre is light, the path oftruth to guide our conduct. The green shows our relation to soil" our relation to the plant life here on which all other life depends. The Ashoka Wheel in the center ofthe white is the wheel of the law of dharma. Truth or satya, dharma or virtue ought to be the contralling principles ofthose who work under this flag. Again, the wheel.denotes motion. There is death in stagnation. There is life in movement. India should no more resist change, it must move and go forward. The wheel represents the dynamism ofa peaceful change."

The law does not put any restrictions on the general public or any private organisations or an educational institutions to display the National Flag except to the extent provided in the Emblems and Names (Prevention of Improper Use) Act, 1950· and The Emblems and Names (Prevention of Improper Use) Act, 1950. The rules provide instructions on how to properly and respectfully hoist and display the National Flag

The second section of the code further explains how the national flag must be hoisted in any educational institutions. It states:

The National Flag may be hoisted in educational institutions (schools, colleges;sports camps, scout camps, etc.) to inspire respect for the Flag. A model set ofinstructions for guidancee is given below-

(i) The School will assemble in open square formation with pupils forming the three sides and the Flag-staff at the centre ofthe fourth side. The Headmaster, the pupil·leader and the person unfurling the Flag (if other than the Headmaster) will stand three paces behind the Flag-staff.

(ii) The pupils will fall according to classes and in squads of ten (or other number according to strength). These squads will be arranged one behind the other. The pupil leader ofthe class will stand to the right ofthe first row of his class and the form master will stand three paces behind the last row ofhis class, towards the middle. The classes will be arranged along the square in the order ofseniority with the seniormost class at the right end.

(iii) The distance between each row should be at least one pace (30 inches); and the space between Form and Form should be the same.

(iv) When each Form or Class is ready, the Class leader will step forward and salute the selected school pupil leader. As soon as all the Forms are ready, the school pupil leader will step up to the Headmaster and salute him. The Headmaster will return the salute. Then, the Flag will be unfurled. The School pupil leader may assist.

(v) The School pupil leader iri charge of the parade (or assembly) will call the parade to attention, just before the unfurling, and he will call them to the salute when the Flag flies out. The parade will keep at the salute for a brief interval, and then on the command "order", the parade will come to the attention position.

(vi) The Flag Salutation will be followed by the National Anthem. The parade will be kept at the attention during this part ofthe function

(vii) On all occasions when the pledge is taken, the pledge will follow the National Anthem. When taking the pledge the Assembly will stand to attention and the Headmaster will administer the pledge ceremoniously and the Assembly will repeat it after him.

(viii) In pledging allegiance to the National Flag, the practice to be adopted in Schools is as follows:- Standing with folded hands, all repeat together the following pledge: "I pledge allegiance to the National Flag and to the Sovereign Socialist Secular Democratic Republic for which it stands.

It further mentions the rules to be followed in general.

Wherever the Flag is flown, it should occupy the position of honour and be distinctly placed. Where the practice is to fly the Flag on any public building, it shall be flown on that building on all days including . Sundays and holidays and, except as provided in this Code, it shall be flown from sun-rise to sun-set irrespective ofweather conditions. The Flag may be flown on such a building at night also but this should be only on very special occasions. The Flag shall always be hoisted briskly and lowered slow·ly and ceremoniously. When the hoisting and the lowering of the Flag is accompanied by appropriate bugle calls, the hoisting and lowering should be simultaneous with the bugle calls. When the Flag is displayed from a staff projecting horizontally or at an angle from a windowsill, balcony, or front of a building, the saffron band shall be at the farther end ofthe s aff. When the Flag is displayed flat and horizontal on a wall, the saffron band shall be upper most and when displayed vertically, the saffron band shall be to the right with reference to the Flag, i.e., it may be to the left of a person facing it. When the Flag is displayed' on a speaker's platform, it shall be flown on a staff'on the speaker's right as he faces the audience or flat against the wall above and behind the speaker. When used on occasions like the unveiling of a statue, the Flag shall be displayed distinctly and separately. When the Flag is displayed alone on a motor car, it shall be flown from a staff, which should be affixed firmly either on the middle front ofthe bonnet or to the front right side ofthe car.read more

Case Study:{ STATE OF KARNATAKA V/S SELVI J. JAYALALITHA & ORS } IN THE SUPREME COURT OF INDIA

Appeals project a challenge to the judgment and order dated 11.5.2015 rendered by the High Court of Karnatka in the appeals preferred by the respondents herein, thereby acquitting them of the charge under Sections 120B and 109 of Indian Penal Code, 1860 (for short “IPC”) read with Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 (for short “1988 Act”) as framed against them and also resultantly setting-aside the order of the Trial Court for confiscation of properties, both movable and immovable, of the concerned firms, as mentioned therein. In the meantime, after the conclusion of the arguments, the respondent No.1 expired and, thus in law, the appeals against her have abated. Nevertheless, in view of the gamut of the imputations and the frame-work of the charges as well as the nature of the evidence, oral and documentary, available on records, reference to her role and involvement, based thereon in collaboration with other respondents would have to be essentially examined. The respondents-accused would hereinafter be referred to as respondents/accused/A1/A2/A3/ A4, as the case may be, contingent on the context.read more

The Trial Court after analyzing oral and documentary evidence came to the conclusion that the accused have not disputed the loan transactions and as a result whereof it held that the prosecution has proved Item Nos.1 to 8 of AnnexureIV. In respect of Item Nos.9 to 21, the Trial Court after duly considering the evidence, both oral and documentary, held that the accused did not dispute the statutory permission obtained by them for constructing new buildings and addition of the building as noted in Exts.65, 64, 51, 54, 63, 56, 48, 49, 50, 59, 60, 61, 62, 66 and 76, respectively and therefore, it appeared that the receipts for such payments and the proceedings maintained by the concerned municipal authority had been established by the prosecution. Similarly, the Trial Court held that payments made with respect to item Nos.23 to 35, 37 to 44, 46, 48 to 54 & 56 to 176 had been proved by the prosecution. The corresponding documents have already been accepted before the Court and hence such expenditure has been proved by the prosecution. With regard to Item Nos.178 to 198, such expenditures were never disputed on behalf of the accused before the Court. After analyzing the evidence of  the prosecution witnesses and their depositions, it held that item Nos.229 & 230 have also been proved by the prosecution.

The Trial Court has duly considered the objections raised on behalf of the accused and rejected the same. Similarly, the Trial Court has also dealt with other expenditures such as household expenses (Item No.225 in the Chart) and the objections raised on such account on the ground of overlapping entries and it came to the conclusion that the argument of the learned counsel raising the objections cannot be accepted. After analyzing the oral and documentary evidence placed on record and the judgments cited before it, the Trial Court came to the following conclusion: “Prosecution has proved beyond reasonable doubt that as against the income of Rs.9,91,05,094.75 and expenditure of Rs.8,49,06,833.00 during the check period, A1 acquired and possessed in her name and in the names of A2 to A4 and in the names of the business enterprises acquired in their names immovable properties and pecuniary resources of the value of Rs.53,60,49,954.00 which she could not satisfactorily account. Hence, acting u/Sec. 248 (2) of 896 Spl.C.C.208/2004 Cr.P.C., A1 is hereby convicted for the offence punishable u/Sec. 13 (1) (e) R/w. Sec. 13 (2) of 1988 Act.
Prosecution has proved beyond reasonable doubt that, A1 to A4 were parties to criminal conspiracy with the object of acquiring and possessing pecuniary resources and assets to the extent of Rs.53,60,49,954.00 beyond the known source of income of A1. Hence, A1, A2, A3 and A4 are hereby convicted for the offence punishable u/Sec. 120-B of I.P.C. R/w. Sec. 13 (1) (e) R/w. Sec. 13 (2) of 1988 Act. Prosecution has proved beyond reasonable doubt that A2 to A4 abetted the commission of the above offence by intentionally aiding A1 in the acquisition and possession of pecuniary resources and properties disproportionate to her known source of income as above. Hence, A2, A3 and A4 are hereby convicted for the offence punishable u/Sec.109 of I.P.C. R/w. Sec. 13 (1) (e) R/w. Sec. 13 (2) of 1988 Act.”

The Trial Court after hearing the learned counsel appearing for the accused and the learned Public Prosecutor on sentence, awarded the following sentence against the accused: “For the offence u/Sec. 13 (1) (e) R/w. Sec. 13 (2) of the 1988 Act, A1 Selvi. J. Jayalalitha, D/o. Late. Jayaram, is hereby sentenced to undergo simple 908 Spl.C.C.208/2004 imprisonment for a period of four years and a fine of Rs.100 crores. In default to pay the fine amount, she shall undergo further imprisonment for one year. For the offence punishable u/Sec. 120-B I.P.C., R/w. Sec. 13 (2) of 1988 Act, A1 is sentenced to undergo simple imprisonment for six months and to pay fine of Rs.1 lakh. In default to pay the fine, she shall undergo further imprisonment for one month. For the offence punishable u/Secs. 109 of I.P.C., R/w. Sec. 13 (2) of 1988 Act, A2 Tmt. Sasikala Natarajan, A3 Tr. V.N. Sudhakaran and A4 Tmt. J. Eavarasi are sentenced to undergo simple imprisonment for a period of four years each and to pay fine of Rs.10 crores each. In default to pay the fine amount, A2, A3 and A4 shall each undergo further imprisonment for one year. For the offence punishable u/Sec. 120-B of I.P.C. R/w. Sec. 13 (2) of 1988 Act, A2, A3 and A4 each are sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.10,000/- each. In default to pay the fine amount, A2, A3 and A4 shall each undergo further imprisonment for one month. Substantive sentences of imprisonment shall run concurrently. Period of custody already undergone by the accused shall be given set off u/Sec. 428 of Cr.P.C. It is further ordered that, necessary direction shall be issued to the concerned banks to remit the proceeds of the Fixed Deposits and the cash balance standing to the credit of the respective accused in their bank account and the proceeds thereof shall be appropriated and adjusted towards the fine amounts. If after adjustment, still the fine falls short, the gold and diamond ornaments seized and produced before the Court (after setting apart 7040 grams of gold with proportionate diamond jewellery), as observed in the body of the judgment shall be sold to RBI or SBI or by public auction to make deficit of fine amount good. The rest of the gold and diamond jewellery shall be confiscated to the Government.

Supreme Court finds Sasikala guilty in DA Case, convicted her with 4 years jail and 10 crores fine

Supreme Court: In a major hit to AIADMK General Secretary Sasikala Natarajan in more than 20 years old case, Supreme Court today convicted her announced a 4 years jail term and also fined her 10 Crores rupees fine.

The case was pending before the apex court after the appeal was filed against the Karnataka High Court Judgement which found Sasikala not guilty of any offence in this case. The judgement came at the time when there was a high voltage drama going on in Tamilnadu State to form the government.

Sasikala will not be able to fight any election for the next 10 years.

Judgement to be uploaded soon.

VYAPAM: "It would not be proper to legitimize the admission of the candidates, to the MBBS course"

Supreme Court: The Apex court today declined the petition filed by the appellants to cancel the order passed by Madhya Pradesh Professional Examination Board cancelling the results of the appellants, of their professional MBBS course, on the ground that the appellants had gained admission to the course, by resorting to unfair means, during the Pre-Medical Test.

A challenge to the orders of cancellation, was raised by the appellants, by invoking the jurisdiction of the High Court of Madhya Pradesh under Article 226 of the Constitution. The matter was referred to the Chief Justice of India to constitute a larger bench to decide upon the case as this case was a matter of question of law.
Supreme court while deciding on the case stated that "For the reasons recorded in the judgment, we respectfully concur with the judgment dated 12.5.2016, rendered by the Hon’ble Companion Judge (of the ‘former Division Bench’). In the facts and circumstances of the case in hand, it would not be proper to legitimize the admission of the appellants, to the MBBS course, in exercise of the jurisdiction vested in this Court under Article 142 of the Constitution. We therefore, hereby, decline the above prayer made, on behalf of the appellants."

The counsel invited the Court’s attention to the following opinion expressed by the author:

“If we look back at the means of individualizing the application of law which have developed in our legal system, it will be seen that almost without exception they have to do with cases involving the moral quality of individual conduct or of the conduct of enterprises, as distinguished from matters of property and of commercial law. Equity uses its powers of individualizing to the best advantage in connection with the conduct of those in whom trust and confidence has been reposed. Jury lawlessness is an agency of justice chiefly in connection with the moral quality of conduct where the special circumstances exclude that “intelligence without passion” which, according to Aristotle, characterizes the law. It is significant that in England today the civil jury is substantially confined to cases of fraud, defamation, malicious prosecution, assault and battery, and breach of promise of marriage. Judicial individualization through choice of a rule is most noticeable in the law of torts, in the law of domestic relations, and in passing upon the conduct of enterprises. The Application of Law The elaborate system of individualization in criminal procedure has to do wholly with individual human conduct. The informal methods of petty courts are meant for tribunals which pass upon conduct in the crowd and hurry of our large cities. The administrative tribunals, which are setting up on every hand, are most called for and prove most effective as means of regulating the conduct of enterprises. A like conclusion is suggested when we look into the related controversy as to the respective provinces of common law and of legislation. Inheritance and succession, definition of interests in property and the conveyance thereof, matters of commercial law and the creation, incidents, and transfer of obligations have proved a fruitful field for legislation. In these cases the social interest in the general security is the controlling element. But where the questions are not of interests of substance but of the weighing of human conduct and passing upon its moral aspects, legislation has accomplished little. No codification of the law of torts has done more than provide a few significantly broad generalizations. On the other hand, succession to property is everywhere a matter of stature law, and commercial law is codified or codifying throughout the world. Moreover the common law insists upon its doctrine of stare decisis chiefly in the two cases of property and commercial law. Where legislation is effective, there also mechanical application is effective and desirable. Where legislation is ineffective, the same difficulties that prevent its satisfactory operation require us to leave a wide margin of discretion in application, as in the standard of the reasonable man in our law of negligence and the standard of the upright and diligent head of a family applied by the Roman law, and especially by the modern Roman law, to so many questions of fault, where the question is really one of good faith. All attempts to cut down this margin have proved futile. May we not conclude that in the part of the law which has to do immediately with conduct complete justice is not to be attained by the mechanical application of fixed rules? Is it not clear that in this part of the administration of justice the trained intuition and disciplined judgment of the judge must be our assurance that causes will be decided on principles of reason and not according to the chance dictates of caprice, and that a due balance will be maintained between the general security and the individual human life?”

It was the contention of defence counsel, that at the time of their admission, most of the appellants (-if not all) were juvenile, and as such, could not be blamed of the irregularity and/or illegality in the procurement of admission to the MBBS course. It was submitted, that this Court must also take into consideration, the fact that the impugned orders set at naught, admissions gained by the appellants to the MBBS course, during the years 2008 to 2012, and as such, may be well beyond the purview of consideration, under the law of limitation, even for examining their culpability/criminality.

To read the complete judgement click here.