The Supreme Court of India has pronounced numerous judgments in the month of December, 2020. In this write-up, the important pronouncements are briefly discussed.
THE LEASE/TENANCY MATTERS WHICH ARE NOT GOVERNED UNDER THE SPECIAL STATUTES BUT UNDER THE TRANSFER OF PROPERTY ACT ARE ARBITRABLE.
A Bench comprising the Chief Justice SA Bobde, Justices A.S. Bopanna and V. Ramasubramanian held that if the special statutes do not apply to the premises/property and the lease/tenancy created as on the date when the cause of action arises to seek for eviction or such other relief and in such transaction if the parties are governed by an Arbitration Clause; the dispute between the parties is arbitrable and there shall be no impediment whatsoever to invoke the Arbitration Clause. The Bench also held that eviction or tenancy relating to matters governed by special statutes where the tenant enjoys statutory protection against eviction whereunder the Court/Forum is specified and conferred jurisdiction under the statute alone can adjudicate such matters and in such cases the dispute is non arbitrable.
NO COMPLETE BAR ON ANTICIPATORY BAIL FOR OFFENCE UNDER MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT 2019 PROVIDED COURT HEARS COMPLAINANT WOMAN.
A Bench of Justices Dr Dhananjaya Y Chandrachud, Indu Malhotra and Indira Banerjee held on a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act 2019, there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail. It would be at the discretion of the court to grant ad-interim relief to the accused during the pendency of the anticipatory bail application, having issued notice to the married Muslim woman. The Bench ordered and directed that in the event of the arrest of the appellant, she shall be released on bail by the competent court, subject to her filing a personal bond of Rs 25,000 and the appellant shall cooperate in the course of the investigation by the Investigating Officer.
SUMMARY EVICTION PROCEDURE UNDER SENIOR CITIZENS ACT CANNOT BE INVOKED TO DEFEAT RIGHT OF RESIDENCE OF WOMAN IN A SHARED HOUSEHOLD AS PER DOMESTIC VIOLENCE ACT.
A Bench of Justices Dr Dhananjaya Y Chandrachud, Indu Malhotra and Indira Banerjee observed that allowing the Senior Citizens Act 2007 to have an overriding force and effect in all situations, irrespective of competing entitlements of a woman to a right in a shared household within the meaning of the PWDV Act 2005, would defeat the object and purpose which the Parliament sought to achieve in enacting the latter legislation. The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislations have to be harmoniously construed. Hence the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act 2007. The Bench held that the Maintenance and Welfare of Parents and Senior Citizens Act has no overriding effect over the right of residence of a woman in a shared household within the meaning of the Protection of Women from Domestic Violence Act.
HOMEOPATHY CAN BE USED IN PREVENTING AND MITIGATING COVID-19 AS PER AYUSH MINISTRY GUIDELINES.
A Bench of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah held that when statutory regulations itself prohibit advertisement, there is no occasion for Homeopathic medical practitioners to advertise that they are competent to cure COVID-19 disease. When the Scientists of entire world are engaged in research to find out proper medicine/vaccine for COVID-19, there is no occasion for making any observation with regard to Homeopathic medical practitioners. The homeopathy does not cure the disease, but it cures the patients. While modifying some observations made by the Kerala High Court, the Bench observed that homeopathy medicine is contemplated to be used in preventing and mitigating COVID-19 as is reflected by the advisory and guidelines issued by the Ministry of AYUSH and the High Court is right in its observation that no medical practitioner can claim that it can cure COVID-19.
ADVERSE INFERENCE CAN BE DRAWN AGAINST PARTY WHO DOES NOT APPEAR IN PERSON TO DEPOSE UNDER SECTION 114 OF THE EVIDENCE ACT.
A Bench of Justices RF Nariman, Navin Sinha and Krishna Murari observed that having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against a party on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872. The Bench allowed the appeal against the concurrent findings by the Trial Court and the High Court. The Bench held that the original defendant did not appear in person to depose, and be cross-examined in the suit and instead his younger brother deposed on the basis of a power of attorney and no explanation was furnished why the original defendant did not appear in person to depose, and therefore, there is no reason not to draw an adverse inference against the defendant in the circumstances.
CHARGE UNDER SECTION 149 IPC CAN BE ALTERED TO SECTION 34 IPC IF COMMON INTENTION AMONG ACCUSED IS PROVEN.
A Bench of Justices NV Ramana, Surya Kant and Aniruddha Bose observed that before the members of an unlawful assembly can be vicariously held guilty of an offence committed in furtherance of common object, it is necessary to establish that not less than five persons, as mandatorily prescribed under Section 141 read with Section 149 of the IPC had actually participated in the occurrence. It is not uncommon, like in the present facts, when although the number of accused is more than five at the time of chargesheeting, but owing to acquittals of some of them over the course of trial, the remaining number of accused falls below five. It may be true in such cases, as rightly urged by the appellants that the charge under Section 148 and 149 IPC would not survive. This does not, however, imply that Courts can not alter the charge and seek the aid of Section 34 IPC (if there is common intention), or that they cannot assess whether an accused independently satisfies the ingredients of a particular offence. Sections 211 to 224 of CrPC which deal with framing of charges in criminal trials, give significant flexibility to Courts to alter and rectify the charges. The only controlling objective while deciding on alteration is whether the new charge would cause prejudice to the accused, say if he were to be taken by surprise or if the belated change would affect his defence strategy. The emphasis of Chapter XVII of the CrPC is to give a full and proper opportunity to the defence but at the same time to ensure that justice is not defeated by mere technicalities. Section 386 of CrPC bestows even upon the appellate Court such wide powers to make amendments to the charges which may have been erroneously framed earlier. Furthermore, improper, or nonframing of charge by itself is not a ground for acquittal under Section 464 of the CrPC. It must necessarily be shown that failure of justice has been caused, in which case a retrial may be ordered. The Bench found the appeals without any merit so far as conviction of the appellants under Section 307 IPC was concerned, and dismissed them, however, their conviction under Section 148 was setaside. Their bail bonds were cancelled and the State of Haryana was directed to take the appellants into custody to serve the remainder of their fiveyear sentence as awarded by the High Court.
NO COVID-19 POSTERS OUTSIDE PATIENTS HOMES WITHOUT DIRECTION FROM COMPETENT AUTHORITY UNDER DMA.
A Bench of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah held that no State or Union Territory is required to paste posters outside the residence of COVID-19 positive persons. The State Governments and Union Territories can resort this exercise only when any direction is issued by the competent authority under the Disaster Management Act, 2005. In view of the guidelines issued by the Ministry of Health and Family Welfare which are referable to exercise of power by the authority under Disaster Management Act, 2005, no requirement is present there regarding pasting of posters against the houses of COVID-19 patients.
ACCEPTANCE OF GIFT CAN BE INFERRED BY IMPLIED CONDUCT OF DONEE.
A Bench of Justices NV Ramana, S. Abdul Nazeer and Surya Kant observed that Section 122 of the Transfer of Property Act, 1882 provides that for a gift to be valid, it must be gratuitous in nature and must be made voluntarily. The said giving away implies a complete dispossession of the ownership in the property by the donor. Acceptance of a gift by the donee can be done anytime during the lifetime of the donor. Section 123 provides that for a gift of immovable property to be valid, the transfer must be effectuated by means of a registered instrument bearing the signature of the donor and attested by at least two witnesses. The Bench held that in the present case, the circumstances clearly indicate that there was an acceptance of the gift by the donee during the lifetime of the donor. Not only the gift deed in itself contained recitals about transfer of possession, but also the mutation records and the statements of the both the donor and donee indicate that, there has been an acceptance of the gift by conduct. The respondents failed to bring on record any evidence to rebut the fact that the donee was in enjoyment of the property. It was a transfer between a father and a son and there was a valid acceptance of the gift when the doneeson started living separately. Apart from the point of acceptance by the donee, since the deed is registered, bears the signature of the donor and has been attested by two witnesses, the requirements under Section 123 of the Transfer of Property Act, 1882 have been satisfied. The bench allowed the appeal and restored the judgment of Single Bench of the High Court.
LONG DELAY IN LODGING FIR IS A VALID CONSIDERATION TO GRANT ANTICIPATORY BAIL.
A Bench of Justices Ashok Bhushan, R. Subhash Reddy, MR Shah held that many a time, delay may not be fatal to the criminal proceedings. However, it always depends upon the facts and circumstances of each case and at the same time, a long delay like 29 years as in the present case can certainly be a valid consideration for grant of anticipatory bail. The Bench noted the fact that the impugned FIR was lodged by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision in the case of Davinder Pal Singh Bhullar and nothing is on record that in between he had taken any steps to initiate criminal proceedings and/or lodged an FIR, therefore, a case is made out by the appellant for grant of anticipatory bail under Section 438, Cr.P.C.
NO CONVICTION UNDER SECTION 304B IPC IF UNNATURAL DEATH IS NOT ESTABLISHED.
A Bench of Justices RF Nariman, K M Joseph and Aniruddha Bose observed that in a marriage performed within seven years before the death of the wife, the death must be unnatural. Soon before the death, the deceased wife must have been at the receiving end of cruelty or harassment, on account of demand for dowry, which is described as dowry death. The relatives concerned, including husband, become liable. Section 113B of the Evidence Act comes to the rescue of the prosecutor by providing for a presumption that a person has caused dowry death if, it is shown that soon before her death, she was subjected by such person for cruelty or harassment for or in connection with demand for dowry. The Bench held that the High Court erred in reversing the acquittal of the trial court and the High Court exceeded the settled position that an acquittal should not be interfered with by the appellate court merely for the reason that an alternate view was possible.
HIGH COURTS NOT HAVING COMMERCIAL DIVISION COMPETENT TO CONSIDER CANCELLATION OF DESIGN UNDER SECTION 22 (4) OF DESIGNS ACT.
A Bench of Justices L. Nageswara Rao, Hemant Gupta and Ajay Rastogi observed that Section 7 of the Commercial Courts Act, 2015 deals with the situation where the High Courts have ordinary original civil jurisdiction. There is no provision in the Commercial Courts Act, 2015 either prohibiting or permitting the transfer of the proceedings under the Design Act, 2000 to the High Courts which do not have ordinary original civil jurisdiction. Section 21 of the 2015 Act gives an overriding effect, only if the provisions of the Act have anything inconsistent with any other law for the time being in force or any instrument having effect by virtue of law other than this Act. Since the 2015 Act has no provision either prohibiting or permitting the transfer of proceedings under the 2000 Act, Section 21 of the 2015 Act cannot be said to be inconsistent with the provisions of the 2000 Act. It is only the inconsistent provisions of any other law which will give way to the provisions of 11 the 2015 Act. In terms of Section 22(4) of the 2000 Act, the defendant has a right to seek cancellation of the design which necessarily mandates the Courts to transfer the suit. The transfer of suit is a ministerial act if there is a prayer for cancellation of the registration. If a suit is to be transferred to Commercial Division of the High Court having ordinary original civil jurisdiction, then the Civil Suit in which there is plea to revoke the registered design has to be transferred to the High Court where there is no ordinary original civil jurisdiction. The Bench held that it is not necessary that a suit involving the issue of cancellation of design under Section 22(4) of the Designs Act should be heard by a High Court having a Commercial Division and therefore, a High Court without original civil jurisdiction and a commercial division is competent to consider such a case.
(Muneeb Rashid Malik can be reached at email@example.com and he tweets @muneebmalikrash).