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The government has no objection to granting of higher scale of pay to the teachers who had acquired Trained qualification while holding their appointments against the Trained Graduate Post as held by the Hon’ble Cuttack High Court before the Hon’ble Dr. Justice B.R. Sarangi in the matters of Bijayalaxmi Mishra v. The State of Orisha and Ors. [WPC(OAC) NO. 1096 of 2014].

 

The case arises from the fact wherein the petitioner working as Assistant Teacher for Trained Graduate Post in Budhnath High School issues directions to the respondent to allow Trained Graduate Teacher scale to pay from the date of passing B.Ed. examination till the date petitioner was actually promoted to the post of Junior Supplemental educational service [SES]. As per the revised yardstick issued by the government, an additional section post was created in class- X-C. The petitioner was appointed against the additional section post. At the same time, the government upgraded the Trained Intermediate post to that of the Trained Graduate post. The petitioner possesses B.Ed. qualification and claims she should be granted trained graduate scale of pay from the date of passing of the examination but it was not considered. Petitioner approached the court by filing Office of Judicial Complaints (OJC) which was disposed of with the direction to consider petitioner representation pending with the Inspector of School and Examination. In case if it finds that the petitioner is entitled to the Trained Graduate Scale of pay as claimed, the necessary recommendation to the Direction of Secondary Education shall be made within two months and the Direction of Secondary Education shall pay necessary orders within two months from the date of receipt of the recommendation.

 

The petitioner was entitled to the Trained Graduate Teacher [TGT] scale of pay but failed to give her the post. Wherein the petitioner was Discriminated against and violated Article 14 of the Constitution of India. 

 

The Hon’ble court held that Petitioner is entitled to be granted the Trained Graduate scale of pay from the date of acquisition of trained qualification and the same should be paid within a period of three months. The balance difference amount will be released in favor of the petitioner within the period of three months from the date of communication of the judgment. 

 

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Judgment reviewed by Kaviya S

The court found no reasonable grounds for the impugned order in the interim relief period to be interfered with and therefore the Coram of Hon’ble Mr. Justice Manmohan and Hon’ble Mr. Justice Navin Chawla [FAO (COMM) 138/2021] rejected the present application.

The present is an appeal petition filed to challenge the order dated 30^th March 2021 passed by the learned District Judge, Commercial Court-5, Central District, Tis Hazari Courts, Delhi in CS Comm. No. 1724/2020, which prohibits the appellant from trading and selling certain namkeen products under the mark of “Gulab”.

The counsel from the appellant side has stated that the getup, color combination, style or pattern of writing alphabet as well as the picture of rose printed on the products of the appellant is completely different from that of the respondent, furthermore, the sales being done by the plaintiff are not related with that of Namkeen and is of other items.

The Honorable Delhi High Court in their judgment finds the two marks in question and are prima facie of the view that both the marks are not identical. The present court however went into the judgment of the trial court whose reasoning is of prime importance for the present decision.

The trial court has noted that “After considering the facts and circumstances of the present case, I am of the view that goodwill and reputation of the firm M/s. Shivnath Rai Sumerchand has so closely associated with the trademark ‘Gulab’ that ordinary purchaser just identify the products of the plaintiff by simply asking about the trademark and nothing else. The products of the plaintiff are recognized and purchased only by name of trademark ‘Gulab’ and after seeing the picture of rose flower on the packaging” Furthermore “It is also revealed from the documents of the parties that M/s. Shivnath Rai Sumerchand firm now owned by the plaintiff no. 1 has started selling namkeen items since year 2000 with the trademark ‘Gulab’ whereas predecessor of defendant company namely M/s. Pankaj Industries started selling namkeen items with same trademark ‘Gulab’ since year 2008 and thus plaintiff no. 1 is entitled to seek injunction against defendant on the basis of passing off also despite existence of big dissimilarity in packaging”

The Delhi High Court in the present decision focused upon the Supreme Court’s decision in the case of Wander Ltd and Anr. v. Antox India P. Ltd., 1990 (Supp) SCC 727, which has held that in the appeals before the Division Bench against the exercise of discretion by the Trial Court, the appellate court will not interfere with the exercise of such discretion of the court of the first instance and substitute its discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principle of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle.

Therefore because of the above reason, the present Delhi High Court found no grounds for the interference of the impugned order at the interim stage. Thus the application was dismissed.

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Judgment Reviewed by: Ashwin Singh

Respondents directed by the present court to dispose of the petitioner’s rectification application. All the rights and contentions of the parties are left open. The decision was granted by Hon’ble Mr. Justice Manmohan & Hon’ble Mr. Justice Navin Chawla [FAO (COMM) 138/2021].

The Petitioner in the present case has sought via the writ to dispose of the petitioner’s rectification application filled in front of respondent number 1 for Assessment Year 2017-18 dated 12 MANMOHAN, J. (Oral) The hearing has been done by way of video conferencing. th April 2019 within a specified period of four weeks and not to recover the wrongful demand by any means, until 30 days after the disposal of the rectification application.

The Petitioner has claimed that the respondent has erroneously determined Rs. 6,40,47,590/- to be paid under Section 143(1) of the Income Tax Act, 1961 due to the disallowance under section 43B, short-grant of TDS Credit, and levy of consequential interests. Furthermore, the petitioner has also claimed that the respondent has further wronged and not performed their public duties by not rectifying the mistakes made by it in Section 143(1) intimation dated 28th April 2019 for the past two and a half years despite repeated reminders of the Petitioner.

Furthermore, the petitioner has also approached respondent number 2 for necessary relief, who again requested the petitioner to approach respondent no. 1. Thus the petitioner approached respondent no. 1 second time however even this was to no avail.

Therefore keeping in view the limited prayer sought in the present petition, the Honorable Delhi High Court allowed the present petition and directed the respondent to rectify the application dated 09^th October 2019 within six weeks by way of a reasoned order and to make payment of refund if any following law. All the rights and contentions of the parties are left open.

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Judgment Reviewed by: Ashwin Singh

It is important that when the police file a final report under Section 173 (2) of the Code of Criminal Procedure, 1973 before the learned Magistrate, the accused gets no indefeasible right to be discharged. The Hon’ble High Court of Calcutta before the Hon’ble Justice Kausik Chanda held such an opinion regarding the case of [C.R.R. NO. 1027 OF 2020] with [C.R.A.N. NO. 1 OF 2021] With [C.R.A.N. NO. 2 OF 2021].

The facts of the case were associated with the petitioner/de-facto complainant/wife by whom a complaint was lodged in Madhyamgram Police Station. The case was lodged against the opposite party no. 2/accused/husband under Sections 498A/406/506 of the Indian Penal Code, 1860. For further investigation of the accused, the petitioner filed a petition under Section 173 (8) of the Code of Criminal Procedure, 1973. It was alleged that a sum of Rs.27,55,675/- was siphoned by the opposite party no. 2, from a joint account without the knowledge and consent of the petitioner. The said petition was taken up to hearing before the learned Hon’ble Judicial Magistrate, 1st Court, at Barasat, 24-Parganas (North), and by an order dated December 18, 2019. The present revisional application has been filed, after the said order dated December 18, 2019, was challenged.

The learned advocate, Mr. Kaushik Gupta representing the petitioner contended that the Hon’ble Magistrate was not justified while ruling out the petitioner/de-facto complainant to serve a copy of the said petition upon the accused/opposite party no. 2 as the Code of Criminal Procedure, 1973 had no provision the accused should be heard in deciding an application under Section 173 (8) of the Code of Criminal Procedure, 1973. 

Mr. Gupta, representing the petitioner, in support of his submission, relied upon the following judgments: (1985) SCC (Cri) 267 (Bhagwant Singh v. Commissioner of Police), (1999) 5 SCC 740 (Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj v. State of Andhra Pradesh), (2009) 6 SCC 65 (Narendra G. Goel vs. State of Maharashtra) and (2020) 4 SCC 22 (Satishkumar Nyalchand Shah v. State of Gujarat). 

The learned counsel, Mr. Prantick Ghosh, representing the opposite party no. 2, opposed the petition submitted by the petitioner and further submitted that the principle of natural justice required that the accused should be heard at the time of deciding a protest petition under Section 173 (8) of the Code of Criminal Procedure for the ends of justice. The Hon’ble Court states that when the police filed a final report under Section 173 (2) of the Code of Criminal Procedure, 1973 before the learned Magistrate, the accused gets no voidable right to be discharged. Till the final charge was framed the investigation agency or the Court can direct further investigation even after filing the final report. Hence, the Hon’ble Court viewed that the accused cannot have any right of hearing while a petition under Section 173 (8) of the Code of Criminal Procedure sought a further investigation. 

The Hon’ble High Court of Calcutta held “In view of the aforesaid discussion, I am of the opinion that the learned Magistrate in the Court below was not justified in holding that the accused should be heard to comply with the principle of natural justice in deciding the petition under Section 173 (8) of the Code of Criminal Procedure filed by the de-facto complainant.”

The Hon’ble High Court of Calcutta before the Hon’ble Justice Kausik Chanda further mentioned “… the order dated December 18, 2019, passed by the learned Magistrate at Barasat is set aside. The learned Magistrate shall decide the petition under Section 173 (8) of the Code of Criminal Procedure, 1973, filed by the petitioner within a  period of four weeks from date without giving any notice to the opposite party no. 2/accused. The revisional application being CRR No. 1027 of 2020 is allowed, and the connected applications, being CRAN No. 1 of 2021 and CRAN No. 2 of 2021 are accordingly, disposed of”.

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Judgment reviewed by Bipasha Kundu

The petitioner was arrested under Sections 366-A of the Indian Penal Code, “Procuration of minor girl”, Section 34 IPC, “Acts have done by several persons in furtherance of common intention” and Section 8 of the Protection of Children from Sexual Offences Act, 2012, “Whoever, commits sexual assault, shall be punished with imprisonment of either Punishment for description for a term which shall not be less than three years but which may extend to five sexual assault. years, and shall also be liable to fine”. The petition is in connection with Chanpatiya PS Case No. 213 of 2020 dated 16.05.2020.  

In the High Court of Judicature at Patna, this judgement was given by Honourable Mr Justice Ahsanuddin Amanullah on the 6^th of September  2021 in the case of Hinmanshu Kumar Versus the State of Bihar, [Criminal Miscellaneous No.37709 of 2020] Mr Arbind Kumar Singh represented as the advocate for the petitioner, and Mr Jharkhandi Upadhyay, represented the State of Bihar as the additional Public Prosecutor, the proceedings of the court were held via video conference. The following are the facts of the case, the petitioner along with others was accused of kidnapping the niece of the informant while she was going to her ancestral house with ornaments of the informant’s wife worth Rs.2,00,000/- and cash Rs. 25,000.

The counsel representing the petitioner held that the girl is not a minor and she is above 18 years and the story which has been scripted in the FIR has been falsely indicated, the niece of the informant was being taken care of by the informant and therefore she would not do such a thing by taking away jewellery of his wife worth Rs.2,00,000/- and also cash of Rs. 25,000. The informant was unhappy and did not approve that his niece and the petitioner were in love because they had already fixed the marriage for the girl with the brother of the stepmother of the girl who was twice her age as the girl was uncomfortable with the same she had run away to marry the petitioner in Durga Mandir, Bettiah. The counsel further stated that after the investigation it was transpired that nobody had kidnapped her and even the girl made a statement before the Court under Section 164 of the Code of Criminal Procedure, 1973, where she held that the story mentioned in the FIR was incorrect. The counsel submitted that the girl is happy and living peacefully in the house of the petitioner as his wife.

For further evidence of the same, on the 21^st of August, the counsel along with the petitioner and his wife (also the victim in this case) appeared before the court on a virtual platform and held before the court that she has been accepted y her in-laws and is happy in the matrimonial home. The petitioner also assured the court that he shall ensure her dignity, honour and security and shall take care of all her needs. Further, he submitted that the girl would be allowed to freely talk, meet and visit any person she desires.

The Honourable Court concluded that “since it is in the larger interest, the Court is persuaded to allow the prayer for pre-arrest bail.  The petitioner will be released on bail upon furnishing bail bonds of Rs. 25,000/- (twenty-five thousand) with two sureties of the like amount each to the satisfaction of the learned Special Judge, POCSO -cum- Additional District & Sessions Judge, 6th, Bettiah, West Champaran, in Chanpatiya [PS Case No. 213 of 2020], under Section 438(2) Cr.P.C. (i) that one of the bailors shall be a close relative of the petitioner, (ii) that the petitioner shall cooperate with the Court and the police/prosecution. Failure to cooperate shall lead to the cancellation of his bail bonds. The petition stands disposed of in the aforementioned terms.”

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Judgment reviewed by – A. Beryl Sugirtham