Citations: 2023 LiveLaw (SC) 639 To 2023 LiveLaw (SC) 679

SUBJECT WISE INDEX

Allotment of Plots

Allotment of Plots - E-auction - When the HSIIDC as the authority deciding to allot industrial plots had laid down a particular procedure which will ensure fairness and transparency amongst the participants, they cannot depart from the notified process particularly when there was no technical report available with the authority to confirm technical fault in the e-auction process. When such a departure from the laid down norm is made, it has to be declared to be arbitrary and unfair. Since the decision is not founded on any acceptable reasoning, it would suffer from the vice of irrationality and unreasonableness. (Para 24) Haryana State Industrial and Infrastructure Development Corporation Ltd. v. Ashish Jain, 2023 LiveLaw (SC) 654

Arbitration

Arbitration award cannot be set aside on mere possibility of an alternative view of facts of interpretation of contract. Konkan Railway Corporation Ltd. v. Chenab Bridge Project Undertaking, 2023 LiveLaw (SC) 668 : 2023 INSC 742

Bail

Bail condition of NDPS accused relaxed - The liberty of an accused who is facing prolonged trial deserves attention of the Court - Prolonged incarceration of undertrial prisoners violates the constitutional principles of dignity and liberty. (Para 8 - 10) Ejike Jonas Orji v. Narcotics Control Bureau, 2023 LiveLaw (SC) 670

Bootlegger

Samples which were drawn and collected from the liquor seized from the possession of the appellant detenu were sent to the forensic science laboratory for the purpose of chemical analysis and in all cases, the analysis report states that the samples were found to be unfit for human consumption and injurious to health. (Para 52) Pesala Nookaraju v. Government of Andhra Pradesh, 2023 LiveLaw (SC) 678

Caste Certificate

No protection should be given to persons who secure public employment through false caste certificates. It is immaterial whether the caste certificate was submitted fraudulently or due to a genuine mistaken belief. Intent is of no consequence. Granting protection to individuals who are ineligible for the post has a deleterious effect on good governance. The said protection would allow an ineligible person to gain access to a scarce public resource, violate the rights of an eligible person, and perpetuate illegality by unduly bestowing benefits on an ineligible person. (Para 21) Bhubaneswar Development Authority v. Madhumita Das, 2023 LiveLaw (SC) 644 : 2023 INSC 728

Civil Law

When can one escape the effects of a document despite signing it ? Supreme Court explains plea of 'non est factum'. Ramathal v. K. Rajamani, 2023 LiveLaw (SC) 666 : 2023 INSC 637

Civil suit – Non-framing of an issue, which is otherwise covered in a broader issue and for which there was sufficient pleading and evidence, the suit could not have been dismissed on that ground. Ramathal v. K. Rajamani, 2023 LiveLaw (SC) 666 : 2023 INSC 637

Order XVII Rule 2 CPC - Court can proceed only against an absent party whose evidence has been substantially recorded. Y.P. Lele v. Maharashtra State Electricity Distribution Company Ltd., 2023 LiveLaw (SC) 653 : 2023 INSC 732

Criminal Delivery System

Failure of the major stakeholders in the criminal delivery system - Three main stakeholders in a criminal trial, namely the Investigating Officer, the Public Prosecutor, and the Judiciary, have all utterly failed to keep up their respective duties and responsibilities cast upon them. The Trial Court and the High Court miserably failed to notice the sensitivity and intricacies of the case. Both the Courts completely shut their eyes to the manner of the investigation, the Prosecutor’s role, and the highhandedness of the accused as also the conduct of the Presiding Officer of the Trial Court, despite observations and findings having been recorded not only by the Administrative Judge but also by the Division Bench deciding Habeas Corpus petition. They continued with their classical rut of dealing with the evidence in a manner as if it was a normal trial. They failed to notice the conduct of the Public Prosecutor in not even examining the formal witnesses and also that the Public Prosecutor was acting to the advantage of the accused rather than prosecuting the accused with due diligence and honesty. The Presiding Officer of the Trial Court acquitting the accused as also the learned Judge of the High Court dismissing the revision, were both well aware of the facts, legal procedures, as well as the law regarding appreciation of evidence in a criminal case. Both the courts below ignored the administrative reports as also the judgment of the High Court in the Habeas Corpus petition. In fact they should have taken judicial notice of the same. They completely failed to take into consideration the conduct of the accused subsequent to the incident, which was extremely relevant and material in view of Section 8 of the Evidence Act. They failed to draw any adverse inference against the accused with respect to their guilt. (Para 107, 111) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Criminal Law

Criminal Trial - Principle governing “Falsus in uno, falsus in omnibus” has got no application to the courts in India. Therefore, it is the duty of the Court to remove the chaff from the grain in its pursuit for truth. (Para 7) T.G. Krishnamurthy v. State of Karnataka, 2023 LiveLaw (SC) 671

Section 149 IPC - Cannot expect witness to speak about specific overt act by each accused with graphic detail. Bhole v. State of Madhya Pradesh, 2023 LiveLaw (SC) 669

Merely because the prosecution witness has made a statement that he did not author the first information report the case of the prosecution cannot be disbelieved especially when there is an admission on his part with respect to the signature made in the FIR. (Para 5) Bhole v. State of Madhya Pradesh, 2023 LiveLaw (SC) 669

"Shabby trial, tainted investigation": Supreme Court reverses acquittal of former MP Prabhunath Singh in 1995 double murder case. Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

'Prosecutor has duty to State, accused and Court; they are not representatives of any party. Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Supreme Court allows former MP & murder convict Prabhunath Singh to appear virtually for hearing on sentence. Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Supreme Court sentences former MP Prabhunath Singh to life imprisonment in 1995 double murder case. Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Maharashtra Co-Operative Societies Act does not curtail power of police investigation under Cr.P.C. Dhanraj N. Asawani v. Amarjeetsingh Mohindersingh Basi, 2023 LiveLaw (SC) 652 : 2023 INSC 710

If an escaped convict already serving life term is subsequently convicted, subsequent sentence will run concurrently with previous life sentence. State of Andhra Pradesh v. Vijayanagram Chinna Redappa, 2023 LiveLaw (SC) 647

Supreme Court orders release of vegetable vendor convicted for possessing 43 counterfeit ten rupees notes. Palanisamy v. State, 2023 LiveLaw (SC) 643

Correctness of witness statements cannot be decided in Section 482 Cr.P.C. proceedings. Manik B. v. Kadapala Sreyes Reddy, 2023 LiveLaw (SC) 642

To attract Section 306 IPC, there must be evidence to substantiate existence of suicide. Yaddanapudi Madhusudhana Rao v. State of Andhra Pradesh, 2023 LiveLaw (SC) 641

Registration of FIR mandatory if information discloses cognizable offence : supreme court reiterates. Sindhu Janak Nagargoje v. State of Maharashtra, 2023 LiveLaw (SC) 639

Contempt of Court

Merely because the matter is not listed on the date specified by the Court, cannot be a ground to initiate contempt petition against the Registry. (Para 2) Manoj v. State of U.P., 2023 LiveLaw (SC) 677

Contempt proceedings were initiated inter alia against the Lieutenant Governor and the Chief Secretary of the Andaman and Nicobar Administration - The High Court found fault with the Administration for (i) seeking an undertaking from the Daily Rated Mazdoors (DRMs) for forgoing the claim of regularization as a pre-condition for the release of payment; and (ii) failing to frame a scheme as directed. Held, that the directions issued by the High Court for the suspension of the Chief Secretary were grossly disproportionate. Moreover, such a direction is extraneous to the exercise of the contempt jurisdiction. The direction to the Lieutenant Governor to deposit Rupees five lakhs even though the contempt proceeding was still to be heard finally is plainly unsustainable. The Administration has during the pendency of these proceedings taken steps to withdraw the offending clauses of its Order dated 9 May 2023. Order 2276 states that the enhanced wages shall be implemented with effect from 1 September 2017. Moreover, Order 2276 stipulates that arrears shall be payable from 1 September 2017 to 8 May 2023 to 4010 DRMs. The Administration has requisitioned funds to the tune of Rupees three hundred crores under the ‘wages head’ which is under consideration before the Union Ministry of Home Affairs. Moreover, it has been stated that the regularization scheme would be framed in terms of the statement which was made before the Division Bench of the High Court. In this view of the matter, the exercise of contempt jurisdiction would not be warranted. (Para 11) Admiral D.K. Joshi v. Andaman Sarvajanik Nirman Vibhag Mazdoor Sangh, 2023 LiveLaw (SC) 656

Doctrine of Legitimate Expectation

A public authority must objectively demonstrate by placing relevant material before the court that its decision was in the public interest to frustrate a claim of legitimate expectation. (Para 38) Sivanandan C.T. v. High Court of Kerala, 2023 LiveLaw (SC) 658 : 2023 INSC 709

E-auction

When e-auction opted for allotment of the industrial plots, the authority could not have departed from the notified procedure. The shift to manual auction would make the earlier process of e-auction an exercise in futility. It would also undermine the finality of the auction process where the bidding must conclude by the stipulated time and the winner is determined by the highest last bid. (Para 29) Haryana State Industrial and Infrastructure Development Corporation Ltd. v. Ashish Jain, 2023 LiveLaw (SC) 654

Election

Election Law - Election contest is not an action at law or a suit in equity but purely a statutory proceeding, provision for which has to be strictly construed. (Para 15) Dharmin Bai Kashyap v. Babli Sahu, 2023 LiveLaw (SC) 661 : 2023 INSC 712

NHRC was not right in seeking to supervise West Bengal panchayat polls; conduct of elections SEC's sole responsibility. National Human Rights Commission v. West Bengal State Election Commission, 2023 LiveLaw (SC) 659

Evidence Law

Extra-judicial confession - While extra-judicial confessions are typically considered weak pieces of evidence, they can still serve as grounds for conviction if proven to be voluntary, truthful, and free of inducement. The court must be convinced of the reliability of the confession, and this evaluation takes into account the surrounding circumstances. (Para 6) Moorthy v. State of Tamil Nadu, 2023 LiveLaw (SC) 679 : 2023 INSC 739

FIR is a public document u/s74 Evidence Act; Injured person's statement recorded as FIR can be treated as dying declaration. Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Marking of Evidence - the marking of a piece of evidence as ‘exhibit’ at the stage of evidence in a Trial proceeding is only for the purpose of identification of evidence adduced in the trial and for the convenience of the Court and other stakeholders in order to get a clear picture of what is being produced as evidence in a Trial proceeding. (Para 85) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Non-exhibition of Evidence - In the present case, considering the failure of State machinery and failure of the Trial Court to ensure a fair trial from the perspective of the victim side, the aspect of non-marking of the FIR and Written Statement of the deceased as an exhibit, non-production of the formal witnesses to prove the lodging of FIR/ Written Statement and the flimsy rejection of application for examination as a witness in the Trial proceeding do not vitiate the genuineness of the FIR and Written Statement, and we refuse to give any discount to the accused persons for non-exhibition thereof. (Para 89) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Production of Document - At the stage of evidence, when any document/paper is formally produced for being treated as a piece of evidence, the Court looks at two basic aspects. Firstly, the existence of the document on the Court’s record and, secondly, the proof of its execution or its contents being sufficiently deposed to by a witness having requisite knowledge thereof, whereafter, the document in question is marked as exhibit. At the stage of exhibiting any document as a piece of evidence, the truth of what is stated in the document is not considered. It is left open to final evaluation at the trial after cross-examination, and the entire testimony of the witness about the existence and contents of the document is weighed in conjunction with various other factors emerging during a trial. At the final evaluation stage, the Trial Court concludes whether the document speaks the truth and decides what weight to give it for final decision. In other words, its evidentiary value is analysed by the Courts at the time of final judgment. (Para 85) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Excise Duty

Excise duty exemption - To determine if a product falls under description "intravenous fluids”, its composition & not its use matters. Commissioner of Central Excise v. Denis Chem Lab Ltd., 2023 LiveLaw (SC) 650

Information

'Ensure public authorities follow the mandate of Section 4 RTI Act': Supreme Court directs Central / State Information Commissioners. Kishan Chand Jain v. Union of India, 2023 LiveLaw (SC) 665 : 2023 INSC 741

Insurance Law

Mere knowledge on the part of the insurer that there was a breach of warranty would not amount to a waiver in the absence of an express representation to that effect. (Para 21) Hind Offshore Pvt. Ltd. v. IFFCO General Insurance Co. Ltd., 2023 LiveLaw (SC) 640 : 2023 INSC 694

Marine Insurance - If a ship is sent to sea in an unworthy state, the insurer is not liable for any loss due to unseaworthiness. Hind Offshore Pvt. Ltd. v. IFFCO General Insurance Co. Ltd., 2023 LiveLaw (SC) 640 : 2023 INSC 694

Judicial Review

When it is seen that the decision of the authority is arbitrary, irrational, and disproportionate, having regard to complaints received only with regard to few plots and yet all 130 plots being put to manual auction after abandoning the e-auction process, the intervention by the High Court with the decision of the authority cannot be faulted. (Para 31) Haryana State Industrial and Infrastructure Development Corporation Ltd. v. Ashish Jain, 2023 LiveLaw (SC) 654

Judicial Service

Unseating Judges after 6 yrs experience is against public interest though their selection was illegal : Supreme Court in Kerala District Judges case. Sivanandan C.T. v. High Court of Kerala, 2023 LiveLaw (SC) 658 : 2023 INSC 709

Supreme Court says Kerala HC erred in fixing cut-off for viva-voce in 2017 District Judge selection; refrains from unseating selected candidates. Sivanandan C.T. v. High Court of Kerala, 2023 LiveLaw (SC) 658 : 2023 INSC 709

Land Law

The Supreme Court reiterates principles of deduction for development charges in land acquisition compensation claims. Mala v. State of Punjab, 2023 LiveLaw (SC) 663 : 2023 INSC 735

Latin Maxim

“qui sentit commodom, sentire debit et onus” - A person who receives advantage must also bear the burden. (Para 74) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

“res judicata pro veritate accipitur” - A judicial decision must be accepted as correct. (Para 69) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

“qui facit per alium facit per se” – He who acts through another, acts himself. (Para 30) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Law and Order and Public Order

There is a very thin line between the question of law and order situation and a public order situation, and sometimes, the acts of a person relating to law and order situation can turn into a question of public order situation. What is decisive for determining the connection of ground of detention with the maintenance of public order, the object of detention, is not an intrinsic quality of the act but rather its latent potentiality. Therefore, for determining whether the ground of detention is relevant for the purposes of public order or not, merely an objective test based on the intrinsic quality of an act would not be a safe guide. The potentiality of the act has to be examined in the light of the surrounding circumstances, posterior and anterior for the offences under the Prohibition Act. (Para 64) Pesala Nookaraju v. Government of Andhra Pradesh, 2023 LiveLaw (SC) 678 : 2023 INSC 734

Marriage

Long Cohabitation - Law infers a presumption in favour of a marriage when a man and woman have continuously cohabitated for a long spell. No doubt, the said presumption is rebuttable and can be rebutted by leading unimpeachable evidence. When there is any circumstance that weakens such a presumption, courts ought not to ignore the same. The burden lies heavily on the party who seeks to question the cohabitation and to deprive the relationship of a legal sanctity. (Para 20) Shiramabai v. Captain, 2023 LiveLaw (SC) 672 : 2023 INSC 744

Media

'Have to keep in mind freedom of speech' : Supreme Court dismisses PIL for central govt authority to regulate media. Reepak Kansal v. Union of India, 2023 LiveLaw (SC) 645

Medical Negligence

The Supreme Court sets aside adverse observations by NCDRC against top cardiologist Dr. Upendra Kaul. Upendra Kaul v. S.C. Mathur, 2023 LiveLaw (SC) 676

Complaint alleges that the angiography was carried out without proper medical equipment, and care was not taken by both the doctor and the hospital, leading to the death. The State Consumer Commission concluded that the Doctor wasn't negligent, but the hospital was guilty of administrative negligence due to the unavailability of necessary equipment during the angioplasty. The NCDRC upheld this decision and a subsequent review petition was also dismissed. Held, Complainants have not tendered evidence of any independent doctor regarding the treatment's appropriateness or any potential medical negligence by the Doctor and the Hospital. The observation as made by the NCDRC that the ventilator was connected belatedly, is not justified. Therefore, insofar as the adverse observations as contained in the impugned order against the Doctor as well as the Hospital, are set aside. The payment of compensation already made shall not reflect on the professional competence of the appellants. Upendra Kaul v. S.C. Mathur, 2023 LiveLaw (SC) 676

Narcotic Drugs

Prolonged incarceration of undertrials violates constitutional principles of dignity & liberty: SC relaxes bail conditions imposed on Nigerian accused in NDPS case. Ejike Jonas Orji v. Narcotics Control Bureau, 2023 LiveLaw (SC) 670

Non est factum

A plea of non est factum is a latin maxim which literally means “it is not the deed". It is a defence available in Contract Law allowing a person to escape the effect of a document which she/he may have executed/signed - Requirements for a successful plea of non est factum - (1) The person pleading non est factum must belong to "class of persons, who through no fault of their own, are unable to have any understanding of the purpose of the particular document because of blindness, illiteracy or some other disability". The disability must be one requiring the reliance on others for advice as to what they are signing (2) The "signatory must have made a fundamental mistake as to the nature of the contents of the document being signed", including its practical effects (3) The document must have been radically different from one intended to be signed. Ramathal v. K. Rajamani, 2023 LiveLaw (SC) 666 : 2023 INSC 637

Partition

There is no prohibition to effect a partition otherwise than through an instrument in writing by duly complying with the requirement of law. In other words, the division may also be effected under a settlement or oral understanding. H. Vasanthi v. A. Santha, 2023 LiveLaw (SC) 655 : 2023 INSC 731

Pension

Past service as contractual employee to be taken into account for pension. State of Himachal Pradesh v. Sheela Devi, 2023 LiveLaw (SC) 662

POCSO Act

The Supreme Court emphasises the importance of “support persons” for victims under the POCSO act; issues guidelines. Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745

Precedent

SC Order dismissing an appeal without any reasons cannot be treated as precedent. Experion Developers Pvt. Ltd. v. Himanshu Dewan and Sonali Dewan, 2023 LiveLaw (SC) 674 : 2023 INSC 748

Law of Precedents - Doctrine of Merger - To merge means to sink or disappear in something else, to become absorbed or extinguished. The logic behind the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority is subjected to a remedy available under law before a superior forum, then the decree or order under challenge continues to be effective and binding; nevertheless, its finality is put in jeopardy. Once the superior court disposes the dispute before it in any manner, either by affirming the decree or order, by setting aside or modifying the same, it is the decree of the superior court, tribunal or authority, which is the final binding and operative decree. The decree and order of the inferior court, tribunal or authority gets merged into the order passed by the superior forum. However, as has been clarified in both decisions, this doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior court and the content or subject matter of challenge laid or could have been laid will have to be kept in view. (Para 32) Experion Developers Pvt. Ltd. v. Himanshu Dewan and Sonali Dewan, 2023 LiveLaw (SC) 674 : 2023 INSC 748

Precedent and Res Judicata - A precedent operates to bind in similar situations in a distinct case, whereas res judicata operates to bind parties to proceedings for no other reason, but that there should be end to litigation. Principle of res judicata should apply where the lis was inter-parties and has attained finality on the issues involved. The principle of res judicata will have no application in cases where the judgment or order has been passed by the Court having no jurisdiction thereof or involving a pure question of law. Law of binding precedents, in terms of Article 141 of the Constitution of India, has a larger connotation as it settles the principles of law which emanates from the judgment, which are then treated as binding precedents. (Para 34) Experion Developers Pvt. Ltd. v. Himanshu Dewan and Sonali Dewan, 2023 LiveLaw (SC) 674 : 2023 INSC 748

When does an order become a binding precedent? – Explained. (Para 18 - 24) Secunderabad Club v. CIT, 2023 LiveLaw (SC) 660 : 2023 INSC 736

Preventive Detention

The 3 months limit under Article 22(4)(a) applies only at the initial stage till the advisory board's report. Pesala Nookaraju v. Government of Andhra Pradesh, 2023 LiveLaw (SC) 678 : 2023 INSC 734

The period of detention should be determined only after the Advisory board gives a report justifying it. (Para 33) Pesala Nookaraju v. Government of Andhra Pradesh, 2023 LiveLaw (SC) 678 : 2023 INSC 734

If the sale of liquor is dangerous to public health, it becomes an activity prejudicial to the maintenance of public order. (Para 65) Pesala Nookaraju v. Government of Andhra Pradesh, 2023 LiveLaw (SC) 678 : 2023 INSC 734

Whether the material was sufficient or not is not for the Courts to decide by applying the objective basis as it is a matter of subjective satisfaction of the detaining authority. (Para 71) Pesala Nookaraju v. Government of Andhra Pradesh, 2023 LiveLaw (SC) 678 : 2023 INSC 734

In the case on hand, the detaining authority has specifically stated in the grounds of detention that selling liquor by the detenu and the consumption by the people of that locality was harmful to their health. Such statement is an expression of his subjective satisfaction that the activities of the detenu is prejudicial to the maintenance of public order. Not only that, the detaining authority has also recorded his satisfaction that it is necessary to prevent the detenu from indulging further in such activities and this satisfaction has been drawn on the basis of the credible material on record. No error, much less an error of law, in the impugned judgement of the High Court. Appeal dismissed. (Para 71) Pesala Nookaraju v. Government of Andhra Pradesh, 2023 LiveLaw (SC) 678 : 2023 INSC 734

Public Interest

It would be contrary to the public interest to direct the induction of the petitioners into the Higher Judicial Service after the lapse of more than six years. Candidates who have been selected nearly six years ago cannot be unseated. They were all qualified and have been serving the district judiciary of the state. Unseating them at this stage would be contrary to public interest. To induct the petitioners would be to bring in new candidates in preference to those who are holding judicial office for a length of time. To deprive the state and its citizens of the benefit of these experienced judicial officers at a senior position would not be in public interest. (Para 53) Sivanandan C.T. v. High Court of Kerala, 2023 LiveLaw (SC) 658 : 2023 INSC 709

Public interest need not remain exclusively limited to ensuring maximum revenue accrual for the Government. Instead, public interest includes, without limiting itself to, a fair, transparent & stable process which any and all executive action must adhere to. (Para 30) Haryana State Industrial and Infrastructure Development Corporation Ltd. v. Ashish Jain, 2023 LiveLaw (SC) 654

Public Interest Litigation (PIL)

Setting up of a National Internal Security Council to deal with organised crime in the country such as smuggling, interstate trafficking, cybercrimes and large-scale political violence. The PIL also sought for all national and state level investigation agencies to be brought under the control of such a body. Held, that the reliefs sought for were in the nature of policy and in the domain of the legislature and hence the writ jurisdiction of the court could not be exercised for the same. Agnostos Theos v. Union of India, 2023 LiveLaw (SC) 651

To limit the pages in petitions filed in Court - Held, the concern of the Petitioner was ‘laudable’, it would not be proper to issue a ‘one size fits all’ direction - Disposed the plea leaving it open to the petitioner to approach the Secretary General of the Supreme Court on any ‘concrete’ suggestions he may have for expeditious disposal of cases. Amrish Rajnikant Kilachand v. Secretary General SCI, 2023 LiveLaw (SC) 646

Real Estate

RERA - Supreme Court seeks responses of States/UTs which haven't established Real Estate Regulatory Authority, Appellate Tribunals. Pioneer Urban Land and Infrastructure Ltd. v. Union of India, 2023 LiveLaw (SC) 657

Service Law

'Tenure post & appointment made on regular post on tenure basis different' : Supreme Court allows lecturer's claim for pay protection. Asma Shaw v. Islamia College of Science & Commerce Srinagar Kashmir, 2023 LiveLaw (SC) 649 : 2023 INSC 690

Statutory Remedy

Where a right or a liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by the statute must be availed of. If a Statute provides for doing a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (Para 12) Dharmin Bai Kashyap v. Babli Sahu, 2023 LiveLaw (SC) 661 : 2023 INSC 712

Tax

Service Tax -­ Assessee cannot be subjected to a penalty on the basis of a show cause notice containing a completely erroneous category of service. (Para 10) Commissioner of Service Tax, Mumbai-II v. 3I Infotech Ltd., 2023 LiveLaw (SC) 675 : 2023 INSC 711

Supreme Court recalls Judgment holding that no indirect taxes can be levied on duty free shops at airports. Commissioner of CGST and Central Excise Mumbai East v. Flemingo Travel Retail Ltd., 2023 LiveLaw (SC) 673

Interest income earned on deposits by clubs in banks which are corporate members taxable; principle of mutuality not applicable. Secunderabad Club v. CIT, 2023 LiveLaw (SC) 660 : 2023 INSC 736

Income tax settlement commission's purpose is to give assessee a chance to disclose undisclosed income to seek immunity. Shree Nilkanth Developers v. Principal Commissioner of Income Tax, 2023 LiveLaw (SC) 648

STATUTE WISE INDEX

Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 - Section 3(2) of the Act refers to the period of delegation of powers and not the period of detention. (Para 27) Pesala Nookaraju v. Government of Andhra Pradesh, 2023 LiveLaw (SC) 678 : 2023 INSC 734

Andhra Pradesh Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986; Section 3(2) - If the detention is on the ground that the detenu is indulging in manufacture or transport or sale of liquor then that by itself would not become an activity prejudicial to the maintenance of public order because the same can be effectively dealt with under the provisions of the Prohibition Act but if the liquor sold by the detenu is dangerous to public health then under the Act 1986, it becomes an activity prejudicial to the maintenance of public order, therefore, it becomes necessary for the detaining authority to be satisfied on material available to it that the liquor dealt with by the detenu is liquor which is dangerous to public health to attract the provisions of the 1986 Act and if the detaining authority is satisfied that such material exists either in the form of report of the Chemical Examiner or otherwise, copy of such material should also be given to the detenu to afford him an opportunity to make an effective representation. (Para 65) Pesala Nookaraju v. Government of Andhra Pradesh, 2023 LiveLaw (SC) 678 : 2023 INSC 734

Arbitration and Conciliation Act, 1996; Section 34, 37 - The scope of interference by a court in an appeal under Section 37 of the Act, in examining an order, setting aside or refusing to set aside an award, is restricted and subject to the same grounds as the challenge under Section 34 of the Act - This jurisdiction is not akin to normal appellate jurisdiction - The jurisdiction under Section 34 of the Act is exercised only to see if the Arbitral Tribunal’s view is perverse or manifestly arbitrary. Accordingly, the question of reinterpreting the contract on an alternative view does not arise. (Para 14, 15, 20) Konkan Railway Corporation Ltd. v. Chenab Bridge Project Undertaking, 2023 LiveLaw (SC) 668 : 2023 INSC 742

CCS Pension Rules, 1972; Rule 2(g) and 17 - Past service as a contractual employee is to be taken into account for pension. (Para 9) State of Himachal Pradesh v. Sheela Devi, 2023 LiveLaw (SC) 662

Central Excise Act, 1944 - In order to determine whether a product would fall under the description of “Intravenous Fluids” so as to be eligible for exemption from excise duty, it is the composition of the product in question which is relevant and not whether the product is used for treatment of any particular disease. The veterinary products ‘Calcium Borogluconate Injection (I.P.) (Vet.)’ and ‘Calcium Magnesium Borogluconate Injection (I.P.) (Vet.)’ manufactured by the assessee fell under the description of “Intravenous Fluids”, and thus were eligible for exemption from excise duty. Commissioner of Central Excise v. Denis Chem Lab Ltd., 2023 LiveLaw (SC) 650

Civil Service Regulations (Jammu & Kashmir); Article 77D - Benefit of Pay Protection - Only exception carved out to Article 77D was in respect of a government servant holding a post on ad-hoc basis or working against leave/suspension or any other short-term vacancy. There is a difference between a tenure post and an appointment made on a regular post on a tenure basis. The appointment to the post of Lecturer at Academic Staff College was not against a short-term vacancy as it was a substantive post on a tenure basis and hence the exception under the third proviso to Article 77D will not apply. Therefore, the appellant is entitled to pay protection. (Para 10) Asma Shaw v. Islamia College of Science & Commerce Srinagar Kashmir, 2023 LiveLaw (SC) 649 : 2023 INSC 690

Code of Civil Procedure, 1908; Order IX - When the defendant counsel had withdrawn his Vakalatnama, in normal course, the Trial Court ought to have issued notice to the defendants to engage another counsel. (Para 21) Y.P. Lele v. Maharashtra State Electricity Distribution Company Ltd., 2023 LiveLaw (SC) 653 : 2023 INSC 732

Code of Civil Procedure, 1908; Order XVII Rule 2 - Any party” refers to the party which has led evidence or substantial evidence and “such party” refers to that very party which has led evidence or substantial evidence - Under Order XVII Rule 2, the Court would proceed to pass orders with respect to any of the parties being absent or both the parties being absent. Whereas the explanation is confined to record the presence of that party and that party alone, which has led evidence or substantial evidence and has thereafter failed to appear. (Para 19) Y.P. Lele v. Maharashtra State Electricity Distribution Company Ltd., 2023 LiveLaw (SC) 653 : 2023 INSC 732

Code of Criminal Procedure, 1973 - Sections 311, 367 and 391 - Appellate Courts can exercise all powers vested in the Trial Court in an attempt to arrive at a just and fair decision. In the present case, unfortunately the Trial Court as well as the High Court failed to exercise their powers under the aforesaid provisions to summon the witnesses of the charge-sheet to prove the police papers. Despite applications being filed to summon persons who were not shown as witnesses to the charge-sheet, the Trial Court repeatedly rejected the said applications in 2006 and again in 2008 on the flimsy grounds that were not named in the charge-sheet or that the Public Prosecutor had not filed such application in gross violation of Section 311 CrPC. (Para 112, 113) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Code of Criminal Procedure, 1973; Section 154 - Registration of FIR is mandatory under Section 154 of Cr.P.C., if the information discloses commission of cognizable offence. Sindhu Janak Nagargoje v. State of Maharashtra, 2023 LiveLaw (SC) 639

Code of Criminal Procedure, 1973; Section 4 (2) - Co-operative Societies Act, 1960 (Maharashtra); Section 81(5B) - the police have an independent power and even duty under the CrPC to investigate into an offence once information has been drawn to their attention indicating the commission of an offence. This power is not curtailed by the provisions of the 1960 Act. There is no express bar and the provisions of Section 81(5B) do not by necessary implication exclude the investigative role of the police under the CrPC. (Para 27) Dhanraj N. Asawani v. Amarjeetsingh Mohindersingh Basi, 2023 LiveLaw (SC) 652 : 2023 INSC 710

Code of Criminal Procedure, 1973; Section 426(2)(b) - Insofar as a life convict is concerned, in law, no part of the sentence remains unexpired. The remission granted by the Government to a life convict, cannot be taken to mean that there is some portion of the life sentence that remains unexpired in the same sense as in the case of other convicts. A life sentence is a sentence for life. What remains unexpired of such a sentence is known only to God (if you believe) and to the Government, if there is a policy of remission. Therefore, Section 426(2)(b) cannot be taken to have included within its fold, the case of a life convict, since in the case of life convict no portion of the sentence remains unexpired, in the technical sense. State of Andhra Pradesh v. Vijayanagram Chinna Redappa, 2023 LiveLaw (SC) 647

Code of Criminal Procedure, 1973; Section 482 - At the stage of deciding an application under Section 482 Cr.P.C., it is not permissible for the High Court to go into the correctness or otherwise of the material placed by the prosecution in the chargesheet - The Court would exercise its power to quash the proceedings only if it finds that taking the case at its face value, no case is made out at all - The factors which the Court is required to take into consideration, while quashing the proceedings under Section 482 CrPC and while considering an application for discharge are totally different - Whether the testimony of the witnesses is trustworthy or not has to be found out from the examination-in-chief and the crossexamination of the witnesses when they stand in the box at the stage of such trial - Such an exercise, in our considered view, is not permissible while exercising the jurisdiction under Section 482 Cr.P.C. (Para 3-9) Manik B. v. Kadapala Sreyes Reddy, 2023 LiveLaw (SC) 642

Code of Criminal Procedure, 1973; Sections 426 and 427 - If an escaped convict already serving life term is subsequently convicted, subsequent sentence will run concurrently with previous life sentence. State of Andhra Pradesh v. Vijayanagram Chinna Redappa, 2023 LiveLaw (SC) 647

Constitution of India, 1950; Article 14 - An individual who claims a benefit or entitlement based on the doctrine of substantive legitimate expectation has to establish the following: (i) the legitimacy of the expectation; and that (ii) the denial of the legitimate expectation led to a violation of Article 14. (Para 44) Sivanandan C.T. v. High Court of Kerala, 2023 LiveLaw (SC) 658 : 2023 INSC 709

Constitution of India, 1950; Article 14 - The High Court’s decision to apply the minimum cut-off marks for the viva voce frustrates the substantive legitimate expectation of the petitioners. The decision is arbitrary and violative of Article 14. (Para 52) Sivanandan C.T. v. High Court of Kerala, 2023 LiveLaw (SC) 658 : 2023 INSC 709

Constitution of India, 1950; Article 14 - The principles of good administration require that the decisions of public authorities must withstand the test of consistency, transparency, and predictability to avoid being termed as arbitrary and violative of Article 14. (Para 43) Sivanandan C.T. v. High Court of Kerala, 2023 LiveLaw (SC) 658 : 2023 INSC 709

Constitution of India, 1950; Article 22(4)(a) - Period of three months specified in Article 22(4)(a) is relatable to the period of detention prior to the report of the Advisory Board and not to the period of detention subsequent thereto. (Para 44) Pesala Nookaraju v. Government of Andhra Pradesh, 2023 LiveLaw (SC) 678 : 2023 INSC 734

Constitution of India, 1950; Article 32 – Petition to restrict the assassination of dignity of individual, community, religious saint, religious & political organisation by these broadcasting electronic channels in the name of freedom of 'Press' - to control these uncontrolled and unregulated broadcasting electronic channels - to restrict media trail, parallel trial, judgmental views and interfering in the administration of justice - to constitute an independent authority for the purpose of regulating and facilitating development of broadcasting services in India - to stop the misuse of airwaves by these broadcasting electronic channels in the name of media, press and journalism - Held, that the prayers are too wide - we have to also keep in mind the fundamental right of freedom of speech and expression - a mechanism has been created to address the grievances headed by a retired Judge of the Supreme Court consists of members of the Civil Society as well. Moreover, this Court is dealing with hate speeches/news items in separate petitions. Therefore, declined to entertain the petition. If the petitioner so desires, he can always make a representation to the appropriate authorities pointing out alleged illegalities committed by news channels. Reepak Kansal v. Union of India, 2023 LiveLaw (SC) 645

Co-operative Societies Act, 1960 (Maharashtra) - Section 81(5B) of the Act casts a positive obligation on the auditor or the Registrar to file an FIR. It does not use any negative expression to prohibit persons other than the auditor or the Registrar from registering an FIR. Therefore, it would be contrary to basic principles of statutory construction to conclude that Section 81(5B) debars persons other than the auditor or the Registrar from filing an FIR. (Para 24) Dhanraj N. Asawani v. Amarjeetsingh Mohindersingh Basi, 2023 LiveLaw (SC) 652 : 2023 INSC 710

Evidence Act, 1872; Section 32 - Dying Declaration - In the case at hand, the deceased gave his statement in the form of a written statement and narrated the entire incident and circumstances of the transaction which resulted in his death. Subsequently, he died on account of injuries suffered by him in the incident in question. This fact is not in dispute and hence, the FIR lodged on the basis of a written statement of injured is liable to be treated as a dying declaration, which itself is a substantive piece of evidence and is admissible under Section 32(1) of the Evidence Act. (Para 95) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Evidence Act, 1872; Section 32 - Dying Declaration - Statement by an injured person recorded as FIR can be treated as a dying declaration and such a statement is admissible. The dying declaration must not cover the whole incident or narrate the case history. Corroboration is not necessary for this situation; a dying declaration can be the sole basis for conviction. (Para 91) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Evidence Act, 1872; Section 32 - Statement by an injured person which was later converted into an FIR, is admissible in evidence and is to be read as a dying declaration or his last statement. (Para 114 (a)) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Evidence Act, 1872; Section 56 - Doctrine of Judicial Notice - Law in respect of taking judicial notice of any fact – (i) The doctrine of judicial notice, as provided under Section 56, is an exception to general rules of evidence applicable for proving any fact by adducing evidence in the Court of law. (ii). According to Section 56 of the Evidence Act, judicial notice of any such fact can be taken by the Court, which is well-known to everyone, which is in the common knowledge of everyone, which is authoritatively attested, which is so apparent on the face of the record, etc. (iii). Except in the rarest of rare cases, judicial notice of any fact is generally not taken in criminal matters in the normal course of proceeding, and the case is decided on the basis of oral, material and documentary evidence adduced by the parties to find out the guilt or innocence. (Para 66) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Evidence Act, 1872; Section 56 - Judicial notice is taken of the judgment in the Habeas Corpus petition regarding the conduct of the accused, the investigating agency, the Public Prosecutor and the Presiding Officer conducting the trial. The two administrative reports of the respective judges, who were constitutional functionaries, also have to be given due credence and cannot be ignored outright regarding the conduct of the accused, public prosecutor and the Presiding Officer conducting the Trial. (Para 114 (f), (g)) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Evidence Act, 1872; Section 74 - FIR is a public document. (Para 82) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Evidence Act, 1872; Section 8 - Conduct of the accused – Accused was instrumental in making all possible efforts to wipe out the evidence against him and the Prosecution machinery as also the Presiding Officer of the Trial Court, if we may say so, was used as a tool of his highhandedness. The obvious question pops up in the mind of any prudent person, as to why he was instrumental, when he was not guilty of the offence to which he was being tried. The obvious answer to this would reasonably come to mind of any prudent person that his guilty mind was fearful about the result. All these aspects leave no room for doubt that the subsequent conduct of the accused is one of the major circumstances pointing towards his guilt for the incident. (Para 72, 73) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Higher Judicial Services Special Rules 1961 (Kerala State); Rule 2(c)(iii) - The decision of the High Court of Kerala to apply a minimum cut-off to the viva voce examination is contrary to Rule 2(c)(iii) of the 1961 Rules. (Para 51) Sivanandan C.T. v. High Court of Kerala, 2023 LiveLaw (SC) 658 : 2023 INSC 709

Income Tax Act 1961 - Settlement Commission - there is a real object and purpose of setting up of the Settlement Commission as an Assessee, who is given an opportunity to disclose the undisclosed income in order to seek benefit in the form of immunity from penalty and prosecution. Shree Nilkanth Developers v. Principal Commissioner of Income Tax, 2023 LiveLaw (SC) 648

Income Tax Act, 1961; Section 2 (24) - Interest income earned on fixed deposits made in the banks by Clubs has to be treated like any other income from other sources within the meaning of Section 2(24). The principle of mutuality would not apply to interest income earned on fixed deposits made by Clubs in the banks irrespective of whether the banks are corporate members of the club or not. Dismissed the plea that the judgement in Bangalore Club vs. Commissioner of Income Tax, (2013) 5 SCC 509 is not a binding precedent and therefore the same calls for reconsideration. (Para 43) Secunderabad Club v. CIT, 2023 LiveLaw (SC) 660 : 2023 INSC 736

Integrated Goods and Services Tax Act, 2017 - The Supreme Court has recalled its judgment dated 10 April 2023, where the Court had ruled that Duty Free Shops situated in the arrival or departure terminals of Airports are outside the customs frontiers of India and therefore, they cannot be saddled with any indirect taxes like the Service Tax. While allowing the review plea filed by the Commissioner of CGST and Central Excise against the Supreme Court’s verdict in Commissioner of CGST and Central Excise v. Flemingo Travel Retail Ltd [Civil Appeal Diary No. 24336/2022 dated 10.04.2023], the court observed that while hearing the appeal, none of the submissions of the Union of India had been recorded or considered, and that the judgment only adverts to the submissions of the respondent- assessee. Commissioner of CGST and Central Excise Mumbai East v. Flemingo Travel Retail Ltd., 2023 LiveLaw (SC) 673

Land Acquisition Act 1894 - While determining the deduction for development charges, the courts should take into consideration important factors including the nature of land, area under acquisition, whether the land is developed or not, if developed to what extent, the purpose of acquisition etc. This exercise is required for ascertaining the percentage of deduction by the Courts. (Para 11) Mala v. State of Punjab, 2023 LiveLaw (SC) 663 : 2023 INSC 735

Marine Insurance Act, 1963 - An insured party seeking insurance coverage based on a Classification Certificate for a vessel must proactively bring any shortcomings or defects to the attention of the Classification Society before the certificate is issued. This is important as the insurance coverage is based on the assumption that the Classification Society has diligently assessed all aspects before issuing the certificate. (Para 16, 21) Hind Offshore Pvt. Ltd. v. IFFCO General Insurance Co. Ltd., 2023 LiveLaw (SC) 640 : 2023 INSC 694

Marine Insurance Act, 1963 - If the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness. (Para 16) Hind Offshore Pvt. Ltd. v. IFFCO General Insurance Co. Ltd., 2023 LiveLaw (SC) 640 : 2023 INSC 694

Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (Chhattisgarh); Rule 6 - Election Petition seeking the relief for re-counting of votes only, without seeking any other reliefs i.e., declarations as contemplated in Rule 6, would not be tenable in the eye of law. (Para 13, 15) Dharmin Bai Kashyap v. Babli Sahu, 2023 LiveLaw (SC) 661 : 2023 INSC 712

Penal Code, 1860; Section 149 - In a case involving 149 of the IPC one cannot expect a witness to speak with graphic detail about the specific overt act that can be attributed to each of the accused. (Para 5) Bhole v. State of Madhya Pradesh, 2023 LiveLaw (SC) 669

Penal Code, 1860; Section 306, 107 - To attract the ingredients of Section 306 IPC, there must be evidence to substantiate the existence of suicide. It should be followed by abetment, as required under Section 107 of the IPC. (Para 9) Yaddanapudi Madhusudhana Rao v. State of Andhra Pradesh, 2023 LiveLaw (SC) 641

Penal Code, 1860; Section 489C - Accused-appellant found to be in possession of 43 counterfeit notes of denomination of Rs.10. He was a vegetable vendor - Sentence of 5 years imprisonment modified to the one already undergone while retaining the conviction. Palanisamy v. State, 2023 LiveLaw (SC) 643

Penal Code, 1860; Sections 302 and 201 - There is serious doubt about the genuineness of the prosecution case regarding the recovery of a dead body and the recovery of the alleged instrument of the offence at the instance of the accused. Most importantly, it is not possible to accept the case of the prosecution which is entirely based on the extra-judicial confession made by the accused. Thus, there was no legal evidence on record to convict the accused. In any case, the guilt of the accused has not been proved beyond a reasonable doubt. (Para 16) Moorthy v. State of Tamil Nadu, 2023 LiveLaw (SC) 679 : 2023 INSC 739

Penal Code, 1860; Sections 302 and 307 - Accused is liable to be convicted under Sections 302 and 307 IPC for committing culpable homicide amounting to murder and attempt to murder. The tainted investigation shows the highhandedness of the accused, who was a powerful person, being a sitting M.P. of the Ruling Party. Adverse inference against the accused is drawn in view of their subsequent conduct. (Para 114 (b), (j)) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738

Protection of Children from Sexual Offences Act, 2012 - Juvenile Justice (Care and Protection of Children) Act, 2015; Section 3 - A support person – whether involved from the early stages of lodging a report or brought on board shortly thereafter - can play a tremendous role in offering encouragement, reassurance, and guidance, merely from their knowledge of the legalese, armed with a compassionate child-friendly approach. Their potential in providing moral support and guidance, which directly translates to better and more just outcomes both in terms of prosecution, and rehabilitation, cannot be overstated. To fulfil their role as envisaged, their primary focus must be the child’s immediate care and protection, and to play the role of a helpful intermediary between the child, its family/guardian, and the various institutional stakeholders and authorities. In these interactions, the support person should bear in mind the principles enunciated in Section 3 of the Act, 2015 while engaging with the child victim, and their families. These include – the principles of dignity and worth, participation, best interest, safety, positive measures, non-stigmatising semantics, non-waiver of rights, equality and non-discrimination, and right to privacy and confidentiality. (Para 6) Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745

Protection of Children from Sexual Offences Act, 2012 - The enactment and bringing into force of the POCSO Act was not merely in furtherance of this country’s commitment to international instruments, but its resolve to and attempt at creating a world as secure and as free from fear, for the most innocent and vulnerable section of its citizens, i.e., children and young adults. Behaviour - physical, verbal, and non-verbal, ranging from what discomfits a child to as horrifying as rape and physical sexual abuse have been criminalized. Special mechanisms to provide access to the justice delivery system, and ensure speedy justice, have been devised. Yet, a society’s commitment to such a cause does not cease by mere enactment of any law, but its willingness, and those governing and administering it, to create and ensure effective overall frameworks which support and strengthen its institutions. (Para 1) Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745

Protection of Children from Sexual Offences Act, 2012 - There are numerous aids prepared, to help in understanding the role of the support person, and how to maximise their impact. The Ministry of Women and Child Development released the Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012 which offers detailed guidance for the use of professionals and experts under the POCSO Act (albeit issued in 2013, i.e., prior to the POCSO Rules, 2020). Similarly, another useful resource tailored specifically for the use of support persons, is the ‘Handbook for Support Persons 2021 – Assisting Child Victims of Sexual Violence’ which is a handy open access resource, available for download from the internet. These resources, comprehensively elucidate child-friendly best practices, and explain what not to do, as a support person, in a lucid and accessible manner. (Para 7) Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745

Protection of Children from Sexual Offences Act, 2012 - Witness Protection Scheme, 2018 - Importance of a support person accompanying the child victim at the time of recording statement and deposition - In addition to maintaining confidentiality of all information, and addressing the concerns of the child and family, the support person is responsible for accompanying the child during recording of statement, medical examination, depositions, and to assist in all other interactions at the investigation, pre-trial, and trial stage. The support person is to make available public or private emergency and crisis services; ensure availability of free legal aid; provide assistance with navigating the victim compensation scheme; track the status of investigation, arrest, and filing of charges of the accused person; follow the dates of the court proceedings to enable the victim or family to attend as required; and be abreast of any other developments such as grant of bail, detention status, etc. of the accused. (Para 5) Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745

Protection of Children from Sexual Offences Act, 2012; Section 39 - Protection of Children from Sexual Offences Rules, 2020 – Directions issued on Comprehensive assessment of support persons ecosystem, Participation of relevant authorities for such assessment, Data collection from district child protection unit, Guidelines and training, Periodic training of all personnel, Reporting mechanism establishment, Standard operating procedure (sop), Role of support persons, Remuneration of support persons to be commensurate with qualification and experience, Model guidelines and precedent consideration, Comprehensive victim support, Role of support institutions and state's responsibility for implementation - Concerned authorities to file a status report by October 4, 2023. (Para 11) Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745

Protection of Children from Sexual Offences Act, 2012; Section 39 - Protection of Children from Sexual Offences Rules, 2020; Rules 4, 5, and 10 - Model Guidelines - A support person is to provide information, emotional and psychological support, and practical assistance which are often crucial to the recovery of the child. This can go a long way in helping them cope with the aftermath of the crime and with the strain of any criminal proceedings – in many ways a support person acts as guardian ad litem for the child. (Para 4) Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745

Protection of Children from Sexual Offences Rules, 2020 - In crimes against children, it is not only the initiating horror or trauma that is deeply scarring; that is aggravated by the lack of support and handholding in the days that follow. In such crimes, true justice is achieved not merely by nabbing the culprit and bringing him to justice, or the severity of punishment meted out, but the support, care, and security to the victim (or vulnerable witness), as provided by the state and all its authorities in assuring a painless, as less an ordeal an experience as is possible, during the entire process of investigation, and trial. The support and care provided through state institutions and offices is vital during this period. Furthermore, justice can be said to have been approximated only when the victims are brought back to society, made to feel secure, their worth and dignity, restored. Without this, justice is an empty phrase, an illusion. The POCSO Rules 2020, offer an effective framework in this regard, it is now left to the State as the biggest stakeholder in it – to ensure its strict implementation, in letter and spirit. (Para 12) Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745

Protection of Children from Sexual Offences Rules, 2020 - Role of a ‘Support Person’ - From the point of registering an FIR/complaint under the POCSO Act, the victim and their family are required to interact with the police machinery, medical officers and hospitals, the Magistrate, Special Court and/or Juvenile Justice Board, the concerned CWC, and other stakeholders – which in itself can be daunting and overwhelming (over and above the already traumatic experience of the crime itself), often dissuading them from pursuing the case altogether. Noticing the need for support at various stages, the role of a ‘support person’ was institutionalised in the POCSO Rules, 2020, to fill this lacuna. (Para 3) Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745

Protection of Children from Sexual Offences Rules, 2020 - Role of a ‘Support Person’ - The present writ petition, arose from the strife caused to an individual victim in her painstaking struggle for justice while navigating the police, investigation stage, and court processes, for the prosecution of an offence under the POCSO Act. At numerous stages, she was revictimized, and faced severe hardships; the issues arising from the individual case, have been dealt with by way of continuing mandamus, wherein this court through a series of orders has monitored the aspects requiring special attention. During those proceedings, it was noticed that the role of a ‘support person’ as envisaged in the POCSO Rules, 2020, despite being a progressive step – remains unfulfilled, or is given effect to, in a partial or ad-hoc manner, thus limiting its positive potential in offering support to victims and their families. (Para 2) Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745

Protection of Children from Sexual Offences Rules, 2020; Rule 4(14) ‘Form-A’ - A support person has been appointed only in 4% of POCSO cases. The availability of services of a support person is not merely directory or suggestive – but a legal entitlement. (Para 9) Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745

Protection of Children from Sexual Offences Rules, 2020; Rules 2(f), 4(8) and 5(6) - Clearly delineating the scope of assistance to be rendered by a support person, the Rules also stipulate that if the Child Welfare Committee (CWC), in contravention of its duties fails to appoint one, or for whatever reason, the child victim and their family wish to engage someone else, they are free to seek assistance from a qualified support person externally [ref: proviso to Rule 5(6)]. Termination of their services, for whatever reason, is also covered under Rule 4(11). (Para 3) Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745

Protection of Human Rights Act, 1993 - Conduct of election is the sole responsibility of the Election Commission. The Human Rights Commission cannot encroach on the autonomy, independence and function of another constitutional authority such as the Election Commission. (Para 9 - 18) National Human Rights Commission v. West Bengal State Election Commission, 2023 LiveLaw (SC) 659

Real Estate (Regulation & Development) Act, 2016 – Implementation Progress Report – The Supreme Court seeks responses of States/UTs which haven't established Real Estate Regulatory Authority, Appellate Tribunals. Pioneer Urban Land and Infrastructure Ltd. v. Union of India, 2023 LiveLaw (SC) 657

Right to Information Act, 2006; Section 4 - Central Information Commission and the State Information Commissions to continuously monitor the implementation of the mandate of Section 4 of the Act as also prescribed by the Department of Personnel and Training in its Guidelines and Memorandums issued from time to time - Power and accountability go hand in hand. While declaring that all citizens shall have the ‘right to information’ under Section 3 of the Act, the co-relative ‘duty’ in the form of obligation of public authorities is recognized in Section 4. The core of the right created under Section 3 in reality rests on the duty to perform statutory obligations. Public accountability is a crucial feature that governs the relationship between ‘duty bearers’ and ‘right holders. (Para 22-27) Kishan Chand Jain v. Union of India, 2023 LiveLaw (SC) 665 : 2023 INSC 741

NOMINAL INDEX

1. Admiral D.K. Joshi v. Andaman Sarvajanik Nirman Vibhag Mazdoor Sangh, 2023 LiveLaw (SC) 656
2. Agnostos Theos v. Union of India, 2023 LiveLaw (SC) 651
3. Amrish Rajnikant Kilachand V. Secretary General SCI, 2023 LiveLaw (SC) 646
4. Asma Shaw v. Islamia College of Science & Commerce Srinagar Kashmir, 2023 LiveLaw (SC) 649 : 2023 INSC 690
5. Bachpan Bachao Andolan v. Union of India, 2023 LiveLaw (SC) 667 : 2023 INSC 745
6. Bhole v. State of Madhya Pradesh, 2023 LiveLaw (SC) 669
7. Bhubaneswar Development Authority v. Madhumita Das, 2023 LiveLaw (SC) 644 : 2023 INSC 728
8. Commissioner of Central Excise v. Denis Chem Lab Ltd., 2023 LiveLaw (SC) 650
9. Commissioner of CGST and Central Excise Mumbai East v. Flemingo Travel Retail Ltd., 2023 LiveLaw (SC) 673
10. Commissioner of Service Tax, Mumbai-II v. 3I Infotech Ltd., 2023 LiveLaw (SC) 675 : 2023 INSC 711
11. Dhanraj N. Asawani v. Amarjeetsingh Mohindersingh Basi, 2023 LiveLaw (SC) 652 : 2023 INSC 710
12. Dharmin Bai Kashyap v. Babli Sahu, 2023 LiveLaw (SC) 661
13. Ejike Jonas Orji v. Narcotics Control Bureau, 2023 LiveLaw (SC) 670
14. Experion Developers Pvt. Ltd. v. Himanshu Dewan and Sonali Dewan, 2023 LiveLaw (SC) 674 : 2023 INSC 748
15. H. Vasanthi v. A. Santha, 2023 LiveLaw (SC) 655 : 2023 INSC 731
16. Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664 : 2023 INSC 738
17. Haryana State Industrial and Infrastructure Development Corporation Ltd. v. Ashish Jain, 2023 LiveLaw (SC) 654
18. Hind Offshore Pvt. Ltd. v. IFFCO General Insurance Co. Ltd., 2023 LiveLaw (SC) 640 : 2023 INSC 694
19. Kishan Chand Jain v. Union of India, 2023 LiveLaw (SC) 665 : 2023 INSC 741
20. Konkan Railway Corporation Ltd. v. Chenab Bridge Project Undertaking, 2023 LiveLaw (SC) 668 : 2023 INSC 742
21. Mala v. State of Punjab, 2023 LiveLaw (SC) 663 : 2023 INSC 735
22. Manik B. v. Kadapala Sreyes Reddy, 2023 LiveLaw (SC) 642
23. Manoj v. State of U.P., 2023 LiveLaw (SC) 677
24. Moorthy v. State of Tamil Nadu, 2023 LiveLaw (SC) 679 : 2023 INSC 739
25. National Human Rights Commission v. West Bengal State Election Commission, 2023 LiveLaw (SC) 659
26. Palanisamy v. State, 2023 LiveLaw (SC) 643
27. Pesala Nookaraju v. Government of Andhra Pradesh, 2023 LiveLaw (SC) 678 : 2023 INSC 734
28. Pioneer Urban Land and Infrastructure Ltd. v. Union of India, 2023 LiveLaw (SC) 657
29. Ramathal v. K. Rajamani, 2023 LiveLaw (SC) 666 : 2023 INSC 637
30. Reepak Kansal v. Union of India, 2023 LiveLaw (SC) 645
31. Secunderabad Club v. CIT, 2023 LiveLaw (SC) 660 : 2023 INSC 736
32. Shiramabai v. Captain, 2023 LiveLaw (SC) 672 : 2023 INSC 744
33. Shree Nilkanth Developers v. Principal Commissioner of Income Tax, 2023 LiveLaw (SC) 648
34. Sindhu Janak Nagargoje v. State of Maharashtra, 2023 LiveLaw (SC) 639
35. Sivanandan C.T. v. High Court of Kerala, 2023 LiveLaw (SC) 658 : 2023 INSC 709
36. State of Andhra Pradesh v. Vijayanagram Chinna Redappa, 2023 LiveLaw (SC) 647
37. State of Himachal Pradesh v. Sheela Devi, 2023 LiveLaw (SC) 662
38. T.G. Krishnamurthy v. State of Karnataka, 2023 LiveLaw (SC) 671
39. Upendra Kaul v. S.C. Mathur, 2023 LiveLaw (SC) 676
40. Y.P. Lele v. Maharashtra State Electricity Distribution Company Ltd., 2023 LiveLaw (SC) 653 : 2023 INSC 732
41. Yaddanapudi Madhusudhana Rao v. State of Andhra Pradesh, 2023 LiveLaw (SC) 641