AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2009 (9) TMI 1021
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....mental police carrying the above weapon and one round of small ammunition in one bag. On being questioned, J.N. Narasimlu told that he had purchased the weapon and one round of small ammunition from the respondent. The respondent and J.N. Narasimlu were placed in closed arrest with effect from September 23, 1995. Summary of evidence against both the persons is said to have been recorded by Major Sudhir Handa of 12 Corps Signal Regiment. 3. The respondent was charged vide charge-sheet dated October 26, 1995 which was served upon him on November 2, 1995 at 1800 hours. He was informed that he would be tried by General Court Martial on November 6, 1995 at 1130 hrs. 4. On November 6, 1995, General Court Martial commenced its proceedings at 1010 hours wherein the respondent is said to have pleaded guilty of both the charges. Based on that, the respondent was awarded punishments; (i) to suffer rigorous imprisonment for three years and (ii) dismissal from service. 5. The respondent aggrieved thereby submitted a petition under Section 164(2) of the Army Act, 1950 before the Chief of the Army staff for setting aside the findings and sentence of the General Court Martial held on November 6....
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....tion thereof shall also be given to him. (3) The officer shall also deliver to the accused a list of the names, rank and corps (if any), of the officers who are to form the court, and where officers in waiting are named, also of those officers in courts-martial other than summary courts-martial. (4) If it appears to the court that the accused is liable to be prejudiced at his trial by any non-compliance with this rule, the court shall take steps and, if necessary, adjourn to avoid the accused being so prejudiced." 13. The key words used in Rule 34 from which the intendment is to be found are "shall not be less than ninety-six hours". As the respondent was not in active service at the relevant time, we are not concerned with the later part of that rule which provides for interval of twenty-four hours for the accused in active service. 14. In his classic work, "Principles of Statutory Interpretation" (seventh edition), Justice G.P. Singh has quoted passage of Lord Campbell in Liverpool Borough Bank v. Turner (1861 30 LJ Ch 37) that read : "no universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory whether impl....
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....lative intent will be wholly or partially defeated." 17. Crawford further says in his treatise that prohibitive or negative words can rarely, if ever, be directory Negative, prohibitory and exclusive words or terms are indicative of the legislative intent that the statute is to be mandatory. 18. In Thomson vs. Stimpson (1960) 3 All E.R 500), Lord Parker C.J. (Queen's Bench Division) while dealing with the wording of Section 16 of the Rent Act, 1957 which provided that no notice by a landlord or a tenant to quit any premises let (whether before or after the commencement of the Act) as a dwelling shall be valid unless it is given not less than four weeks before the date of which it is to take effect held that four weeks' notice contemplated in Section 16 should be construed as four clear weeks. This is what Lord Parker, C.J. observed : "..................Parliament here, however, has gone further and used the words which have been interpreted in the past as providing for four clear weeks. Like Bennett, J., in Re Hector Whaling, Ltd. (1935) All E.R.303, I think that there ought to be certainty on this matter, and I prefer the view that the word should be construed as four ....
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.... The period of not less than three months' notice conforms to that scheme and is intended to ensure that imposition of a new burden or exemption from tax causes least dislocation and inconvenience to the dealer in collecting the tax for the Government, keeping accounts and filing a proper return, and to the Revenue in assessing and collecting the same. Another object of this provision is that the public at large and the purchasers on whom the incidence of the tax really falls, should have adequate notice of taxable items. The third object seems to be that the dealers and others likely to be affected by an amendment of the Second Schedule may get sufficient time and opportunity for making representations, objections or suggestions in respect of the intended amendment. The dealers have also been ensured adequate time to arrange their sales, adjust their affairs and to get themselves registered or get their licenses amended and brought in accord with the new imposition or exemption. 70. Taking into consideration all these matters, the legislature has, in its judgment solemnly incorporated in the statute, fixed the period of the requisite notice as "not less than three months" an....
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.... of the act altogether, or merely to make the person who did it liable to pay the penalty. 19. Where a contract, express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect. (See Mellis v. Shirley L.B.[(1885) 16 QBD 446)] A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition. The penalty may be imposed with intent merely to deter persons from entering into the contract or for the purposes of revenue or that the contract shall not be entered into so as to be valid at law. A distinction is sometimes made between contracts entered into with the object of committing an illegal act and contracts expressly or impliedly prohibited by statute. The distinction is that in the former class one has only to look and see what acts the statute prohibits; it does not matter whether or not it prohibits a contract; if a contract is made to do a prohibited act, that contract will be unenforceable. In the latter class, one has to consider not what act the statute prohibits, but what contracts it prohibits. One is not concern....
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....ention of making the provision absolute, peremptory and imperative becomes loud and clear and ordinarily has to be inferred as such. There being nothing in the context otherwise, in our judgment, there has to be clear ninety-six hours interval between the accused being charged for which he is to be tried and his arraignment and interval time in Rule 34 must be read absolute. There is a purpose behind this provision: that purpose is that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety-six hours. A trial before General Court Martial entails grave consequences. The accused may be sentenced to suffer imprisonment. He may be dismissed from service. The consequences that may follow from non-observance of the time interval provided in Rule 34 being grave and severe, we hold, as it must be, that the said provision is absolute and mandato....
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.... order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and no....
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....ram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision." 24. The judgment of this Court in State Bank of....