TaxTMI 
TaxTMI 
2018 (7) TMI 708
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....single Judge does not require to be reiterated except to the extent required. Thus, the primary facts are taken as such from the recording made in the orders under challenge. 3. Heard Shri K.T.S.Tulsi, learned Senior Counsel for Ms.C.Uma and Mr.N.R.R.Arun Natarajan, learned counsel appearing for the appellant and Shri G.Rajagopal, learned Additional Solicitor General for the respondents. 4. The appellant was engaged by one Ms.Manoranjana Sinh through her counsel to act as a Senior Lawyer on two occasions before the Company Law Board and the Delhi High Court. A Memorandum of Understanding(MOU) was signed between M/s GNN Pvt. Ltd., a media company owned by Ms.Manoranjana Sinh and M/s Bengal Media Pvt. Ltd., owned by Mr.Sudipto Sen on 09.06.2010. The relevant Clause 15 is furnished hereunder. "15.Bengal media will assist Mrs.Manoranjana in the ongoing litigation with Mr.Matang Sinh by co-ordinating with her lawyers." 5. It was followed by another Agreement signed by one Ms.Manoranjana Sinh on behalf of GNN Pvt. Ltd., and Mr.Sudipto Sen on behalf of M/s Bengal Media Pvt. Ltd., in which, clause 5.2 is apposite. "5.2. The company shall issue fresh shares to the....
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....not chosen to file a counter affidavit denying the allegations made, they should be taken as admitted and thus true. On a query, the learned Senior Counsel would submit that both malice in fact and law are available. There is also an element of bias involved in the proceedings initiated. The appellant is entitled for the protection under Sections 126 and 129 of the Indian Evidence Act, 1872, which are meant to uphold the sanctity of the legal profession qua a client. A liberal interpretation is required in extending the benefit under Section 160 of the Code of Criminal procedure in calling a woman for investigation. The submissions of the eloquence are sought to be buttressed through the sprinkling of the following decisions. (i)NANDINI SATPATHY VS. P.L. DANI AND ANOTHER ((1978) 2 Supreme Court Cases 424); (ii)ASMITA AGARWAL VS. THE ENFORCEMENT DIRECTORATE AND OTHERS ((2002) Criminal Law Journal 819); (iii)M/S PUSMA INVESTMENT PVT. LTD., AND OTHERS VS. STATE OF MEGHALAYA AND OTHERS ((2010) Criminal Law Journal 56); (iv)FOZIYA SAMIR GODIL VS. UNION OF INDIA AND TWO OTHERS (Spl. Crl. Application (Direction) No.1725 of 2014 with Spl. Crl. Appln.No.1....
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....e development and growth of country's economy. 12.2. Section 2(s) defines the word person (s)"person" includes;- (i)an individual, (ii)a Hindu undivided family, (iii)a company, (iv)a firm, (v)an association of persons or a body of individuals, whether incorporated or not, (vi)every artificial juridical person, not falling within any of the preceding sub-clauses, and (vii)any agency, office or branch owned or controlled by any of the above persons mentioned in the preceding sub-clauses; (sa)"person carrying on designated business or profession" means,- (i)a person carrying on activities for playing games of chance for cash or kind, and includes such activities associated with casino; (ii)a Registrar or Sub-Registrar appointed under section 6 of the Registration Act, 1908 (16 of 1908) as may be notified by the Central Government; (iii)real estate agent, as may be notified by the Central Government; (iv)dealer in precious metals, precious stones and other high value goods, as may be notified by the Central Government; (v)person engaged in safekeeping and....
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....r the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:- (a)discovery and inspection; (b)enforcing the attendance of any person, including any officer of a reporting entity and examining him on oath; (c) compelling the production of records; (d) receiving evidence on affidavits; (e) issuing commissions for examination of witnesses and documents; and (f) any other matter which may be prescribed. (2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act. (3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. (4) Every proceeding under sub-sections (2) and (3) shall be deemed to be a judici....
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....ntains a non-obstante clause dealing with any possible inconsistency in any other law. While Section 65 applies to the Code of Criminal Procedure for helping the authority, Section 71 clears any possible inconsistency with all the provisions of the Act 15 of 2003. Resultantly, even assuming if there is any inconsistency, with any other law for the time being in force, Act 15 of 2003 will have primacy. Idea is to avoid any obstacle that might arise through the operation of other enactments. 13. Code of Criminal Procedure, 1973: Section 160 of the Code of Criminal Procedure comes under Chapter XII which deals with information to police and their power to investigate. Section 160 of the Code of Criminal Procedure deals with the power of the police officer to require attendance of witnesses. Proviso to section carries out an exception when it comes to a woman. Thus, she shall not be required to attend the enquiry at any place other than the place in which she resides. Under Section 161 of Cr.P.C, a witness can be examined by the police. However, a statement made by any person during the course of investigation shall not be signed and used in evidence except to the extent provided....
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....hority under Section 50 of the Act. There is no necessity to meet the requirements of the proviso to Section 160 of the Code of Criminal Procedure since an independent power has been conferred on the authority under Section 50 of the Act. Wherever the Act itself stipulates the specific power, authority and procedure, there is no requirement to read the provisions of Code of Criminal Procedure into it. In fact, the most harmonious manner in which both the enactments can be parallely invoked would be to ensure that the provisions of Code of Criminal Procedure are not read into or invoked wherever the Act itself specifically provides for the same. 15. Case on Hand:- While dealing with the interpretation of statutes, we are supposed to apply a reasonable, creative and fair construction principle. Unless there appears to be a dire conflict, they are to be allowed to sail in their own waters. Considering the above, one of us (M.M.Sundresh,J.) has held in STAR INDIA PRIVATE LIMITED VS. DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION, MINISTRY OF COMMERCE AND INDUSTRY, NEW DELHI AND OTHERS (W.P.Nos.44126 and 44127 of 2016 dated 23.05.2018) as follows: 6.2. Judging a statute th....
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....in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place." 6.8. An entry in the List under the Seventh Schedule is the field of legislation. Thus the power is derived only under Article 246 of the Constitution of India. Such an entry has to be given widest amplitude of its power as against a narrow and restricted one. A liberal construction of the words in an entry is the rule. Hence legislative entries are to be interpreted broad and wide. However, the general rule of interpretation also would apply by a combined reading of provisions, objects and reasons put together as a whole. 6.9. R.S.REKHCH....
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....der: (SCC pp. 150-51) "67. It is well to remember that the meaning of the expressions used in the Constitution must be found from the language used. We should interpret the words of the Constitution on the same principle of interpretation as one applies to an ordinary law but these very principles of interpretation compel one to take into account the nature and scope of the Act which requires interpretation. A Constitution is the mechanism under which laws are to be made and not merely an Act which declares what the law is to be. It is also well settled that a Constitution must not be construed in any narrow or pedantic sense and that construction which is most beneficial to the widest possible amplitude of its power, must be adopted. An exclusionary clause in any of the entries should be strictly and, therefore, narrowly construed. No entry should, however, be so read as not (sic) to rob it of entire content. A broad and liberal spirit should, therefore, inspire those whose duty it is to interpret the Constitution, and the courts are not free to stretch or to pervert the language of an enactment in the interest of any legal or constitutional theory. Constitutional adjudic....
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....my and G.P Pattanaik, JJ. were members, in Indian Aluminium Co. v. State of Kerala 1996 7 SCC 637 considered the same question in paras 12 and 20 which read as under: (SCC pp. 647 and 649) "12. The primary question, therefore, is: Whether the impugned Act enacted by the State Legislature is one under Entry 53 of the State List, viz., Taxes on the consumption or sale of electricity . Indisputably, the title of the Act as well as the charging Section 3 employ the words duty on supply of electricity . Under article 246(3) of the constitution, every State legislature has explicit power to make law for that State with respect to the matters enumerated in List II (State List) of the Seventh Schedule to the Constitution. The State's power to impose tax is derived from the Constitution. The entries in the three lists of the Seventh Schedule are not power of legislation but merely fields of legislation. The power is derived under Article 246 and other related articles of the Constitution. The legislative fields are of enabling character designed to define and delimit the respective areas of legislative competence of the respective legislatures. There is neither implied restrict....
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....depend upon the text and the context. There is very limited difference between a purposive, reasonable, creative and fair construction interpretation. One has to fall upon the object and the reasons behind an enactment. The Court may sit in the arm chair of a maker of the enactment and see through its eyes. 7.2. Interpretations of two enactments as stated above are to be made on the settled legal principles. Thus, there is no presumption of one enactment encroaching upon the other unless there is a clear inconsistency or repugnancy. Therefore, the Court has to be satisfied that the provisions contained in both the enactments sought to be impugned with respect to one of them are irreconcilable and such inconsistency appears so apparent. In the absence of a direct conflict or collision between the two enactments, one cannot be held as contrary to the other. In such a case, even if there is an incidental overlapping, it would not violate the provisions. Occasional vagaries do not matter much. 7.3. By a general principle, a special Act is to be given primacy over a general one. However, this also has to be seen on the provisions governing both enactments. There may be....
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....n dealing with penal statutes, the Court was confronted with a body of case law which stated that as penal consequences ensue, the provisions of such statutes should be strictly construed. Here again, the modern trend in construing penal statutes has moved away from a mechanical incantation of strict construction. Several judgments were referred to and it was held that a purposive interpretation of such statutes is not ruled out. Ultimately, it was held that a fair construction of penal statutes based on purposive as well as literal interpretation is the correct modern day approach. 29. However, Dr. Singhvi cited Raghunath Rai Bareja v. Punjab National Bank, (2007) 2 SCC 230 and relied upon paragraphs 39 to 47 for the proposition that the literal construction of a statute is the only mode of interpretation when the statute is clear and unambiguous. Paragraph 43 of the said judgment was relied upon strongly by the learned counsel, which states: In other words, once we depart from the literal rule, then any number of interpretations can be put to a statutory provision, each judge having a free play to put his own interpretation as he likes. This would be destructive....
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.... has all the powers of a Court of Session and/or Magistrate, as the case may be, after the prosecution is instituted or transferred before that Court. The width of the power of the Special Court will be same whether trying such cases as are instituted before it or transferred to it. The use of different words in Sections 6 and 7 of the Act as already noticed earlier also shows that the words in Section 7 that the prosecution for any offence shall be instituted only in the Special Court deserve a liberal and wider construction. They confer on the Special Court all powers of the Magistrate including the one at the stage of investigation or inquiry. Here, the institution of the prosecution means taking any steps in respect thereof before the Special Court. The scheme of the Act nowhere contemplates that it was intended that steps at pre-cognizance stage shall be taken before a court other than a Special Court. We may note an illustration given by Mr Salve referring to Section 157 of the Code. Learned counsel submitted that the report under that section is required to be sent to a Magistrate empowered to take cognizance of offence. In relation to offence under the Act, the Magistrate h....
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....inani Cements Ltd. (2014) 8 SCC 319 at 332, the rule of construction of two Parliamentary statutes being harmoniously construed was laid down as follows: 35. Generally, the principle has found vast application in cases of there being two statutes: general or specific with the latter treating the common subject-matter more specifically or minutely than the former. Corpus Juris Secundum, 82 C.J.S. Statutes ' 482 states that when construing a general and a specific statute pertaining to the same topic, it is necessary to consider the statutes as consistent with one another and such statutes therefore should be harmonised, if possible, with the objective of giving effect to a consistent legislative policy. On the other hand, where a general statute and a specific statute relating to the same subject-matter cannot be reconciled, the special or specific statute ordinarily will control. The provision more specifically directed to the matter at issue prevails as an exception to or qualification of the provision which is more general in nature, provided that the specific or special statute clearly includes the matter in controversy (Edmond v. United States [137 L Ed 2d 917 : 52....
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....of their dues or enforcement of security interest, as the case may be. 131. The Court could have given effect to the non obstante clauses contained in Section 34(1) of the DRT Act and Section 35 of the Securitisation Act vis-`-vis Section 38-C of the Bombay Act and Section 26-B of the Kerala Act and similar other State legislations only if there was a specific provision in the two enactments creating first charge in favour of the banks, financial institutions and other secured creditors but as Parliament has not made any such provision in either of the enactments, the first charge created by the State legislations on the property of the dealer or any other person, liable to pay sales tax, etc., cannot be destroyed by implication or inference, notwithstanding the fact that banks, etc. fall in the category of secured creditors. 49. Since there is no clear disharmony between the two Parliamentary statutes in the present case which cannot be resolved by harmonious interpretation, it is clear that both statutes must be read together. Also, we must not forget that Section 30 of the Advocates Act deals with the fundamental right under Article 19(1)(g) of the Constitution....
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....ision of repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some implication can be made of the words in the earlier Act, a repeal will not be inferred. (See: A.G. vs. Moore 1878 (3) ExD 276, Ratanlal's case (supra) and R.S. Raghunath vs. State of Karnataka and Anr. 1992 AIR(SC) 81 ). 7. The necessary questions to be asked are: (1) Whether there is direct conflict between the two provisions- (2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law; (3) Whether the two laws occupy the same field. (See: Pt. Rishikesh and Anr. vs. Salma Begum (Smt.) 1995 (4) SCC 718 ), and Shri A.B. Krishna & Ors. vs. The State of Karnataka & Ors. 1998 (1) JT 613 ). 8.The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did n....
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...., sans impartiality. Thus bias strikes at the very basis of a decision, which is supposed to be fair. 4. As bias emanates from the mind of a person, proof of it is at times very difficult. Therefore, a litigant has been given the lesser burden of establishing before the Court that there exists a real likelihood of bias or reasonable suspicion of it. The test is not existence of the bias as an authority may act in good faith, but such an action is liable to be questioned on the ground of real likelihood of bias or reasonable suspicion of it. This is for the reason that a mind may honestly think and act keeping fairness in mind, but such a decision which flows from it might lead to an element of bias unconsciously. 5. Bias is synonymous with prejudice. Robert Ingersoll defined prejudice in the following manner: Prejudice is the spider of the mind. It is the womb of injustice. When an apparent bias transforms itself into a womb of injustice then, it has to be struck down by the Courts. 6. Bias can be divided into three parts. They are: (i) Pecuniary Bias (ii) Personal Bias and (iii) Official Bias. 7. We a....
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....nquiry especially when the same cannot be established with ease. Thus a reasonable apprehension of bias and real likelihood of bias are surrogates for bias. This is also for the reason that apart from rule of law and fairness, there can be an unconscious bias exists though not intended. 9.Pre-determination and pre-disposition are two facets of bias. An alleged predetermination or predisposition has to be highlighted from an apparent bias. An apparent bias has to be found out from the point of view of either a reasonable mind or a fair minded informed observer as discussed above. Thus, the Court has to sit in the armed chair as a fair minded man who otherwise could be called a reasonable man and determine whether there exists a real bias. Therefore, a Court is required to transform itself to such a man and then decide. This is the common law principle, which has been evolved by the Courts. There is very little difference between a real likelihood and a reasonable suspicion of bias in practice. It is ultimately for the Courts to decide that there exists a bias or not. After all, the test of likelihood or reasonable suspicion is a mere instrument in identifying an element of ....
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....MANTG VIMALNATH NARICHANIA AND OTHERS ((2010) 9 Supreme Court Cases 437). The following paragraph would be apposite. Legal Malice: 25. The State is under obligation to act fairly without ill will or malice- in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended." It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Smt. S.R. Venkataraman v. Union of India, AIR 1979 SC 49; State of A.P. v. Goverdhanlal Pitti, AIR 2003 SC....
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.... no requirement to read the proviso to Section 160 of the Code of Criminal Procedure into Section 50 of the Act. 17.5. The contention of the learned Senior Counsel appearing for the appellant that the averments not being controverted, there is a deemed acceptance, in our considered view cannot be countenanced. When there is no material to substantiate the averments, there is no need to deny them. The appellant has not produced sufficient materials, even prima facie so as to enable us either to hold the existence to likelihood of bias or malice either in fact or law. 18. Decisions: 18.1. As the learned single Judge has made reliance upon number of decisions, it would be appropriate to consider them. In ASMITA AGARWAL VS. THE ENFORCEMENT DIRECTORATE AND OTHERS ((2002) Criminal Law Journal 819), the High Court of Delhi was dealing with the proceedings in FERA Act. Having found that FERA is silent regarding the investigation of women, it was held that the provision of Section 160 of the Code will apply. To be noted, there is no pari materia provisions under the FERA Act as contained in Act 15 of 2003 with specific reference to Sections 52, 65 and 72. Further, the petitioner th....