Court : Allahabad
Reported in : AIR1970All51; 1970CriLJ132
oak, c.j.1. the question before the full bench is :'whether the dictum of this court in the case of parbhoo v. emperor, 1941 all lj 619 = (air 1941 all 402) (fb) to the effect that the accused who puts forwarda plea based on a general exception in the indian penal code is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea based on such a general exception) a reasonable doubt is created in the mind of the court whether the accused person is entitled to the benefit of the said exception is still good law'.2. i have read the judgment prepared by my learned brother mathur, j. in my opinion, the statement of law in parbhoo's-case : air1941all402 is not accurate, and needs qualification.section 105, indian evidence act, states:'when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the indian penal code, or within any special exception or proviso contained in any other part of the same code, or in any law defining the offence, is upon him, and the court shall presume the absence of such circumstances.'mr. p.c. chaturvedi, appearing for the appellants conceded that when an accused pleads an exception in the indian penal code, the burden of proof lies upon him. parties are not agreed as to the manner in which the burden may be discharged. one can conceive three different modes: (1) by proving the exception .....
Tag this Judgment!Court : Allahabad
Reported in : 2006(1)AWC787
vineet saran, j.1. on 12.12.1975 the plot in dispute was declared surplus under the u.p. imposition of ceiling on land holdings act, 1960. then on 6.3.1976 the land management committee allotted one bigha each from the said plot to kripa (grand-father of the petitioner) and two other persons. on 19.11.1977, the sub-divisional officer granted approval and thereafter the names of the allottees were recorded in the revenue records. after the death of the said kripa in 1991, the name of the petitioner was entered in the revenue records. however, on 18.5.1993 a notice is said to have been issued to kripa for cancellation of the lease of the plot granted in his favour. it is note worthy that the said kripa had already expired on that date and the name of the petitioner had already been entered in the revenue records. however, by order dated 23.9.1993 passed by respondent no. 2, the additional commissioner (administration), meerut division, meerut, the lease granted in favour of kripa was cancelled. on coming to know of the same, on 9.2.1994 the petitioner filed an application for recalling the order dated 23.9.1993. the said application was rejected on 30.3.1994, which order was challenged in writ petition no. 17693 of 1994 and by judgment dated 30.1.1996, the order rejecting the restoration application was quashed and the matter was remanded for deciding the restoration application afresh. without deciding the restoration application, the respondent no. 2 again, by order dated .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1941All221
braund, j.1. this is an appeal arising out of a suit no. 127 of 1933, from the court of the first additional subordinate judge of gorakhpur. in order to appreciate the point which is not an altogether easy one it will be necessary to consider the proceedings a little closely. mt. gomti as plaintiff brought the suit against some 33 defendants divided into two groups, the first group composed of defendants 1 to 22 and the other group composed of defendants 23 to 83. it is not very material to notice exactly what her cause of action was. it is sufficient to say that she sought a decree for a substantial sum of money on account of arrears of maintenance and for an order that she was entitled to the benefit of certain yearly payments in cash and in kind. but it is important to notice that by para. 10 of her plaint she valued her relief at the sum of rs. 17,000.2. mt. gomti brought her suit in forma pauperis, and in due course it was duly admitted under order 33 of schedule 1, civil p.c. the dispute was never actually fought out because in november 1933 the parties came to a compromise about it. at that stage it is necessary to look closely to see what happened. on 30th november 1933 the plaintiff put in an application before the subordinate judge to amend her plaint. it is to be found at p. 9 of the record and to paraphrase it she said that being an inexperienced purdanashin lady she had made a mistake, about the value of the property she claimed and she asked to have the .....
Tag this Judgment!Court : Allahabad
Reported in : 2005(1)AWC911
v.m. sahai, j.1. the question that arises for consideration in these petitions is whether excise duty could be levied against the petitioners if the security holograms which were to be affixed by the distilleries on the bottles, pouches and canes under bound were wasted and could not be produced by the distillery before the excise department for verification.2. the petitioner distilleries have filed these writ petitions for quashing of the policy decision issued by the state government dated 3.2.2001 and the circulars issued by the excise commissioner in pursuance of it, as arbitrary, invalid and against law. civil misc. writ petition no. 1204 of 2004 is treated to be the leading writ petition.3. the petitioner, m/s. saraya industries ltd., manufactures indian made foreign liquor (in short i.m.f.l.). it has licence for manufacture of potable liquor and carries on manufacturing activities at its distillery unit at sardarnagar, district gorakhpur. the petitioner had been paying excise duty, in accordance with the provisions of u.p. excise act, 1910, as amended in 1950 (in short the act). the state government on 3.2.2001 took a policy decision, for the excise year 2001-02 which commenced from 1.4.2001, that the distilleries were under obligation to obtain and affix security holograms (in short holograms) issued by the department to prevent evasion of duty and smuggling of liquor. in pursuance of the policy decision taken by the state government, the excise commissioner issued a .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1943All273
orderyorke, j.1. this is an application in revision under section 25, provincial small cause courts act, by the defendant against whom a decree has been given for rs. 77 odd on foot of a pronote dated 17th june 1935 for rs. 42. the rate of interest given in the pro-note is rs. 2 per cent., per mensem but the plaintiff's claim was based on a reduced rate of re. 1-4-0 per cent., per mensem. the defendant took a number of pleas in regard to the execution of the pronote and he further pleaded that he was a workman and therefore entitled to the benefits of section 9, u. p. debt redemption act. the learned judge of the small cause court found that the pronote was duly executed by the defendant and upon the plea that the defendant was a workman as contemplated by section 2, clause (20)(a), debt redemption act, he held in the following terms: 'i do not think that a compositor working in a press would be a workman in the city of allahabad.' learned counsel for the applicant has pointed out that in clause (20)(a), debt redemption act, workman is defined as a person who earned wages within the meaning of sub-section (6) of section 2, payment of wages act, 1936, within the twelve months preceding the first day of june 1940, which did not exceed rs. 600 in the said twelve months and did not exceed rs. 60 in any such months.2. the payment of wages act, (indian act, 4 of 1936), section 1(4) applies in the first instance to the payment of wages to persons employed in any factory, etc., etc. .....
Tag this Judgment!Court : Allahabad
Reported in : (2004)188CTR(All)434; [2004]266ITR657(All)
m. katju, j.1. this writ petition has been filed for quashing the impugned directions and notice dated march 23, 1994 (annexures 5 and 6 to the petition), under section 142(2a) of the income-tax act, 1961. the petitioner has also prayed for a mandamus restraining respondent no. 1, the assistant commissioner of income-tax, central circle i, varanasi, from proceeding in pursuance of the aforesaid directions and notice.2. heard learned counsel for the parties.3. the petitioner is a company registered under the indian companies act. the petitioner established a vanaspati manufacturing unit at varanasi. it maintains its account on mercantile basis. for the assessment year 1990-91, the petitioner filed a return under the income-tax act on december 31, 1990, declaring a loss of rs. 24,61,860. notice under section 143(2) of the act dated june 18, 1991, was served on the petitioner on june 21, 1991. thereafter also several notices dated july 15, 1991, july 30, 1991, november 7, 1991, november 9, 1992, etc., were issued to the petitioner asking for various details and making various queries. however, it is alleged in para. 9 of the petition, that at no stage of the assessment proceedings, did respondent no. 1 tell or indicate to the petitioner that the account books of the petitioner were of complex nature and he was finding it difficult to understand, appreciate or apprehend the entries in the account books.4. it is alleged in para. 10 of the petition that during the assessment in .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1964All75
oak, j. 1. i agree with my learned brother that the application should be allowed. i would like to add a few words on the question of maintainability of the application.2. mr. s.n. kakkar appearing for sri l.n. dalmia, objector contended that, the application under section 151, c. p. c. is not maintainable. mr. kakkar advanced two reasons in support of his contention. he argued that the present applicants were not parties in special appeal no. 299 of 1961. secondly, the court has no power to alter its judgment, dated 14-2-1962.3. mr. kakkar relied upon order xx, rule 3, c. p. c. order xx, rule 3, c. p. c. states :'the judgment shall be dated and signed by the judge in open court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by section 152, or on review.'4. in sajjadi begam v. dilawar husain, air 1915 all 98 a court made a decree in plaintiff's favour conditional upon his paying an extra court-fee within a certain time. it was directed that the suit would stand dismissed in the case of non-compliance with the condition. it was held that the court had no jurisdiction to interfere with the decree by extending the time for payment of the extra court-fee.5. in perumal moopan v. m.k. venkatachariar, 68 ind cas 910 : (air 1922 mad 193) it was held by madras high court that, a stranger to a litigation cannot intervene after a suit or a proceeding is disposed of, and claim the protection of section 151, c. p. c. or .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1939All433
bennet, j.1. this is a reference to a full bench in the following terms:does an appeal lie to the district judge under section 242(1)(d), agra tenancy act (3 of 1926), against the decision of the revenue court in a suit for recovery of arrears of revenue brought under section 223 of that act, if the defendant pleads that he is not liable to pay any revenue at all?2. the plaintiff brought two suits in the court of an assistant collector, first class, under section 223, agra tenancy act, claiming arrears of revenue under rs. 200 from a number of defendants. on the decision of the assistant collector dismissing the suits, the plaintiff applied to the commissioner in revision and the commissioner forwarded the application in revision to the board of revenue stating his opinion that revision lay. the board of revenue differed and held that these were cases in which appeals lay to the district judge under section 242, agra tenancy act of 1926, and therefore that no revision lay to the board, in accordance with section 252 of that act. the plaintiff therefore filed two appeals in the court of the district judge of agra, and 'she district judge of agra has dismissed these two appeals in one judgment. the plaintiff brought two second appeals in this court and a preliminary objection was taken that no appeal lay to the district fudge under section 242(1)(d) and therefore that the dismissal of the suits of the plaintiff by the trial court had become final. the question therefore of .....
Tag this Judgment!Court : Allahabad
Reported in : AIR1971All138; 1971CriLJ453
seth, j.1. this criminal reference has come up before us on a reference made by d. d. seth, j. as he thought that there was conflict between the opinions of mulla, j. and desai, j., on the point involved in this case, as expressed by them in the cases of ram kishore v. smt. bimla devi : air1957all658 and ramji malviya v. smt. munni devi. : air1959all767 .2. facts giving rise to this reference are that on 21st of june, 1960. the city magistrate allahabad made an order under section 488 (1), criminal p. c. directing noor mohammad (hereinafter referred to as the opposite party) to pay maintenance to his wife smt. mehrunnisa (hereinafter referred to as the applicant) at the rate of rs. 40/- per month. the order was made on the finding that as the applicant became incapable of bearing children, opposite party ill-treated her and turned her out of his house. the applicant had sufficient reason to live away from her husband and the opposite party had sufficient means to maintain her, but he refused and neglected to do so.3. the opposite party filed an application in revision before the sessions judge, allahabad and obtained a stay order on 16th october, 1966. the stay order was, however, vacated on 6th of may, 1967. a revision application was then filed before this court, which was also dismissed on 8th november, 1967. in spite of the dismissal of revision applications the opposite party did not pay the maintenance allowance. the applicant therefore, moved an application dated 9th .....
Tag this Judgment!Court : Allahabad
Reported in : 1998(1)AWC192
s.k. phaujdar, j.1. in this application under section 482, cr. p.c., the applicant has challenged an order dated 22.12.1993 passed by the ivth judicial magistrate, aligarh, in case no. 1984 of 1991, state v. dharam pal, under sections 323 and 324, i.p.c. p. s. madrak, district aligarh. the aforesaid order was challenged in a criminal revision no. 69 of 1994 before the sessions court and the iiird addl. sessions judge at aligarh had dismissed the revision application by his order dated 23.9.1996.2. it appears from the order impugned that initially the case was taken up against dharam pal and others and certain witnesses were examined at the trial stage. in their statements, the complicity of the present applicants in the alleged offence had transpired and the prosecution made a prayer for an action under section 319, cr. p.c. against the present applicants. the learned trial court considered the prayer and directed issuance of summons on the present applicants by his order dated 22.12.1993.3. it was contended on behalf of the present applicants that a mere statement in examination-in-chief of the witnesses examined at the trial could not have been relied upon to record an order under section 319, cr. p.c. as the statements could not be covered under the word 'evidence' unless the same was tested by cross-examination. in addition to meeting this point with an argument that even a statement in examination-in-chief is 'evidence' so far section 319, cr. p.c. is concerned, the .....
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