SUBJECT WISE INDEX

Adverse Possession

The onus to prove acquisition by adverse possession shifts on the defendant, once the title of the property has been upheld in the name of Plaintiff by a judgment/decree in an earlier suit between the same parties. (Para 7) Prasanna v. Mudegowda, 2023 LiveLaw (SC) 381

Amravati Land Scam

The Supreme Court set aside the High Court order which stayed the probe into the Amravati Land Scam, in a plea moved by the government. The High Court ought not to have granted interim stay when it was not required as the entire matter was at a premature stage. The High Court is expected to decide the writ petition on merits in accordance with the law without being influenced by any of the observations made in the order. State of Andhra Pradesh v. Varla Ramaiah, 2023 LiveLaw (SC) 390

Arbitration

Arbitration: Supreme Court upholds rejection of S. 8 application since cause of action went beyond transaction containing arbitration agreement. Gujarat Composite Ltd. v. A Infrastructure Ltd., 2023 LiveLaw (SC) 384

Bail

Chargesheet not incomplete merely because it was filed without sanction; the accused can't seek default bail on that ground. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377

Don't seek extension of time for investigation at the last moment, accused will get right to default bail: Supreme Court to NIA, Police. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377

In matters pertaining to citizens' liberty, courts should act promptly; avoid detailed deliberation of evidence in bail pleas. Sumit Subhaschandra Gangwal v. State of Maharashtra, 2023 LiveLaw (SC) 373

Carriage

Section 16 Carriage by Road Act applicable to suit/ legal proceedings in connection with loss/damage to consignment alone. ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378

Central Excise

Mere broad-basing of entries under Central Excise Tariff Act, cannot justify re-classification, without change in nature, character or use of the product. Commissioner of Customs, Central Excise and Service Tax v. Ashwani Homeo Pharmacy, 2023 LiveLaw (SC) 397

Civil Law

Order VII Rule 11 CPC - Plaint to be rejected if it is vexatious, illusory cause of action and barred by limitation. Ramisetty Venkatanna v. Nasyam Jamal Saheb, 2023 LiveLaw (SC) 372

Company Law

Section 140(5) Companies Act 2013 is constitutional; resignation of auditor won't end proceedings under Sec 140(5). Union of India v. Deloitte Haskins and Sells LLP, 2023 LiveLaw (SC) 388

No priority for workers' dues after liquidation of company under IBC: Supreme Court upholds Section 327(7) of Companies Act 2013. Moser Baer Karamchari Union v. Union of India, 2023 LiveLaw (SC) 386

Criminal Law

The District Police Chief can't order further investigation without permission from the Magistrate or Higher Court. Peethambaran v. State of Kerala, 2023 LiveLaw (SC) 402

‘Court not to sermonise on morality’: SC allows premature release of woman convicted for killing sons while attempting suicide. Nagarathinam v. State through the Inspector of Police, 2023 LiveLaw (SC) 401

Supreme Court sets aside Magistrate's order directing police investigation into allegation of rape against BJP leader Kailash Vijayvargiya. Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396

Section 389 Cr.P.C. - Sentence can be suspended in appeal only if the convict has fair chances of acquittal. Omprakash Sahni v. Jai Shankar Chaudhary, 2023 LiveLaw (SC) 389

The Home Secretary cannot order further investigation or reinvestigation of case by another agency. Bohatie Devi v. State of Uttar Pradesh, 2023 LiveLaw (SC) 376

Criminal Trial

The duty of the presiding judge of a criminal trial is not to watch the proceedings as a spectator or a recording machine but he has to participate in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. (Para 11, 12) Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395

Customs

Customs Act 1962 : Supreme Court delivers split verdict on jurisdiction of settlement commission in relation to goods under Section 123. Yamal Manojbhai v. Union of India, 2023 LiveLaw (SC) 399

Death Penalty

Mercy Petition - The Supreme Court refused to commute the death sentence of Babbar Khalsa terrorist Balwant Singh Rajoana to life imprisonment on the ground of the long pendency of the mercy petition before the President of India. The BKI operative was convicted for his role in the assassination of the former chief minister of Punjab, Beant Singh, in August 1995. There are directions by this Court vide orders dated 4.12.2020 and 2.5.2022 to dispose of the Mercy Petition of the petitioner. The Ministry of Home Affairs, upon material consideration of various reports from its different branches, has come to the conclusion that the consideration may be deferred as it could have an impact of compromising the security of the nation or creating law and order situation. It would not be within the domain of this Court to delve upon the decision of the competent authority to defer taking of any decision at present. It is within the domain of the executive to take a call on such sensitive issues. As such this Court does not deem it appropriate to issue any further directions. The stand of the Ministry of Home Affairs to defer the decision on the Mercy Petition of the petitioner is also a decision for the reasons given thereunder. It actually amounts to a decision declining to grant the same for the present. It is, however, directed that the competent authority, in due course of time, would again as and when it is deemed necessary, may deal with the Mercy Petition, and take a further decision. (Para 19 - 23) Balwant Singh v. Union of India, 2023 LiveLaw (SC) 391

Delay in disposal of the Mercy Petition - the argument regarding pendency of the Mercy Petition and there being a delay of more than 10 years cannot be sustained. Firstly, the petitioner himself never submitted any Mercy Petition. The alleged Mercy Petition of year 2012 was filed by Shiromani Gurudwara Prabandhak Committee (SGPC). Further, after the communication of the Ministry of Home Affairs dated 27.09.2019, the proposal for considering the commutation of the death sentence of the petitioner was started and a decision was taken to keep the same pending till disposal of the pending appeals before this Court, filed by the coaccused as well as by CBI, as according to the competent authority, it would have a bearing and it could be relevant for taking final decision on the said proposal of commutation. Further, it was after the directions issued by this Court on 04.12.2020 and 02.05.2022 that the matter was again considered by the competent authority and it was decided to defer the question of commutation in view of the reasons given in the affidavit filed by the Ministry of Home Affairs. Thus, it cannot be alleged that there has been an inordinate delay in disposal of the Mercy Petition. The decisions relied in support of submission regarding inordinate delay in disposal of the Mercy Petition and resultantly commutation in such cases having been granted by this Court, do not help the petitioner in view of the facts and situation being different in those three cases and in the present case. (Para 17, 18) Balwant Singh v. Union of India, 2023 LiveLaw (SC) 391

Election

Election petition liable to be dismissed on showing no cause of action; vague allegations not material facts. Kanimozhi Karunanidhi v. A. Santhana Kumar, 2023 LiveLaw (SC) 398

Environmental Law

No mining activity within Eco-Sensitive Zone (ESZ) even if ESZ is more than 1 km from protected forest. In Re: T. N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 392

Evidence Law

Circumstantial Evidence - In a criminal trial, the prosecution has to prove its case beyond reasonable doubt. This heavy burden has to be discharged by the prosecution. It becomes even more difficult in a case of circumstantial evidence. In the present case, the nature of circumstantial evidence is weak. In order to establish a charge of guilt on the accused, the chain of evidence must be completed and the chain must point out to one and only one conclusion, which is that it is only the accused who have committed the crime and none else. We are afraid the prosecution has not been able to discharge this burden. (Para 15) Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395

Circumstantial Evidence - In a case where there is no direct eye witness to the crime, the prosecution has to build its case on the circumstantial evidence. It is a very heavy burden cast on the prosecution. The chain of circumstances collected by the prosecution must complete the chain, which should point to only one conclusion which is that it is the accused who had committed the crime, and none else. Each evidence which completes the chain of evidences must stand on firm grounds. In our considered opinion, the evidence placed by the prosecution in this case does not pass muster the standard required in a case of circumstantial evidence. (Para 15) Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395

Examination

Police SI selection - Supreme Court finds fault with HC for not considering candidates' objections to questions. Sachit Kumar Singh v. State of Jharkhand, 2023 LiveLaw (SC) 382

Objections to Questions in Competitive Examination – Appeals by unsuccessful candidates appearing for limited competitive examination conducted by the Jharkhand Staff Selection Commission for appointment to the post of police subinspector – Jharkhand High Court refused to consider objections raised by petitioners on merits on the ground that they were filed beyond the stipulated period for filing objections – Held, high court erred in refusing to consider the petitioners’ objections on merits and took a too technical view – Further held, even if the objections had been raised by the petitioners beyond the prescribed period of submitting them, but before the declaration of results, the high court ought to have considered the objections on their merits –Appeals allowed in part – Appeals remanded to high court to be considered afresh. Sachit Kumar Singh v. State of Jharkhand, 2023 LiveLaw (SC) 382

Family Law

How to decide if a marriage has irretrievably broken down? The Supreme Court indicates factors. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Parties cannot directly approach the Supreme Court under Article 32 seeking divorce on ground of irretrievable breakdown of marriage. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Waiting period for mutual consent divorce as per S.13b(2) of Hindu Marriage Act can be waived invoking Article 142. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

'Irretrievable breakdown of marriage' a ground to dissolve marriage invoking Article 142 powers. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Irretrievable breakdown of marriage a ground of dissolve marriage invoking powers of the Supreme Court under Article 142 of the Constitution of India - This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. (Para 42(iii)) Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Irretrievable Breakdown of Marriage - Fault theory can be diluted by this Court to do ‘complete justice’ in a particular case, without breaching the self-imposed restraint applicable when this Court exercises power under Article 142(1) of the Constitution of India - Apportioning blame and greater fault may not be the rule to resolve and adjudicate the dispute in rare and exceptional matrimonial cases - It would be in the best interest of all, including the individuals involved, to give legality, in the form of formal divorce, to a dead marriage, otherwise the litigation(s), resultant sufferance, misery and torment shall continue. (Para 29) Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Irretrievable Breakdown of Marriage - Illustrative list of factors which are to be considered while granting divorce on this ground. (Para 33) Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Judicial Services

Can't direct that 50% hc judges should be from district judiciary; but at least 1/3rd should be from judicial services. All India Judges Association v. Union of India, 2023 LiveLaw (SC) 385

Supreme Court refuses to order that 50% of High Court judges should be recruited from judicial services - Court says that ratio between judges from district judiciary and from bar be maintained at least as 1:3 - Issues directions to speed up the filling up of vacancies from judicial quota - the tenure of the Service Judges in the High Court, most of the times, is only few years - So, High Courts requested to take immediate steps in recommending the names for elevation from the service cadre prior to the occurrence of such vacancies, so that there is no delay in elevation of the Judges from the service cadre. All India Judges Association v. Union of India, 2023 LiveLaw (SC) 385

Land Grabbing

Insofar as the State of Tamil Nadu is concerned, there is no specific enactment and/or Act to deal with land grabbing cases and the Anti-Land Grabbing Special Cells have been formed by G.O. No. 423 dated 28.07.2011 to exclusively deal with the land grabbing cases. In absence of any guidelines and/or definition as to which cases can be said to be land grabbing cases, it gives unfettered and unguided and arbitrary powers to the police to treat any land case as a land grabbing case which will be investigated by the Land Grabbing Special Cell. Even a dispute between two private persons which may be under the Specific Relief Act and/or Transfer of Property Act may be considered as a land grabbing case. In absence of any specific guideline and/or definition of “land grabbing cases,” such powers can be abused or misused and such powers can be said to be exercised arbitrarily. Therefore, the High Court has rightly set aside G.O. No. 423 dated 28.07.2011 with liberty to the State Government to bring any appropriate legislation. (Para 6) Government of Tamil Nadu v. R. Thamaraiselvam, 2023 LiveLaw (SC) 400

If the State Government is so conscious and/or interested in taking action against land grabbers, it will be open for the State Government to bring an appropriate legislation with the clear definition of “land grabber” and “land grabbing” or better legislations with a clear definition of “land grabbing”,” land grabber” and “land grabbing cases” and the present order shall not come in their way to enact such legislation and/or better legislations. (Para 7) Government of Tamil Nadu v. R. Thamaraiselvam, 2023 LiveLaw (SC) 400

Precedent

'Not everything said in a judgment constitutes a precedent': Supreme Court explains distinction between obiter dicta & ratio decidendi. Career Institute Educational Society v. Om Shree Thakurji Educational Society, 2023 LiveLaw (SC) 380

Distinction between obiter dicta and ratio decidendi - “The inversion test” to identify what is ratio decidendi in a judgment - To test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed, i.e. to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case - It is not the findings of material facts, direct and inferential, but the statements of the principles of law applicable to the legal problems disclosed by the facts, which is the vital element in the decision and operates as a precedent. Even the conclusion does not operate as a precedent, albeit operates as res judicata. Thus, it is not everything said by a Judge when giving judgment that constitutes a precedent. The only thing in a Judge's decision binding as a legal precedent is the principle upon which the case is decided and, for this reason, it is important to analyse a decision and isolate from it the obiter dicta. Career Institute Educational Society v. Om Shree Thakurji Educational Society, 2023 LiveLaw (SC) 380

Premature Release

Court is not an institution to sermonise society on morality and ethics - the positive recommendation of the State Level Committee for premature release of the accused, has been rejected by the State on the ground that the accused had administered poison to murder her two sons to continue her illicit relationship without any hinderance, which act was cruel and brutal in nature - the accused never tried to murder her sons with a view to continue her illicit relationship - there is no valid reason / justifiable ground for the State not accepting the recommendation of the State Level Committee for premature release of the accused - We are not oblivious to the crime but we are equally not oblivious to the fact that the mother has already suffered at the cruel hands of fate. (Para 16 - 19) Nagarathinam v. State through the Inspector of Police, 2023 LiveLaw (SC) 401

Review

Supreme Court dismisses plea challenging rule permitting disposal of review petitions without oral arguments. P.T. Mohan v. Registrar Supreme Court of India, 2023 LiveLaw (SC) 379

SARFAESI Act

SARFAESI auction can't be stayed just because the sale agreement holder offered to pay dues, when the borrower hasn't invoked S.13(8). G. Vikram Kumar v State Bank of Hyderabad, 2023 LiveLaw (SC) 394

Service Law

Retirement age of Anganwadi workers - the Supreme Court set aside a judgment of the Tripura High Court which directed the State Government to raise the retirement age of Anganwadi workers from 60 years to 65 years. State of Tripura v. Rina Purkayastha, 2023 LiveLaw (SC) 387

Retirement age of Anganwadi workers – the Supreme Court found fault with the High Court for issuing a mandamus to the State Government to change its policy regarding the retirement age of workers. The High Court reasoned that since 90% of expenses of the Integrated Child Development Services Scheme - under which the Anganwadi workers are engaged- are borne by the Central Government, there will not be a fundamental increase in the burden of the State if their retirement age is increased. Held, that this line of reasoning adopted by the High Court is unacceptable. State of Tripura v. Rina Purkayastha, 2023 LiveLaw (SC) 387

Retirement age of Anganwadi workers – Looking to the very nature of the work and the structure of services, when the state government is the primary authority to decide the service conditions, no mandamus can be issued to the state government to change its policy, regardless of the proportion of the share of the central government in the expenditure burden. State of Tripura v. Rina Purkayastha, 2023 LiveLaw (SC) 387

Retirement age of Anganwadi workers – Supporting the High Court judgment, the amicus curiae contended that the Court can always issue relevant directions to ensure that fundamental rights and protections available to the citizens are not violated. The amicus also pointed out the retirement age of Anganwadi Workers was 65 years in many states and stressed that parity in employment is a reasonable expectation. Held, that as regards the scheme in question, it is clear that even while certain propositions/expectations had been laid by the central government, the existing statutory norms do not provide for uniform age limit for retirement of AWs/AHs; and it is for the state government to decide as regards the service conditions, including the age of discharge. (Para 10)

Retirement age of Anganwadi workers – by enhancing the age of retirement, the requirement of substitute is delayed, remains bereft of logic, and that in any case, that does not provide a legal ground to force the state government to alter its policy only because such expectations are stated by the central government or because some other states have provided for such an age of discharge. (Para 11) State of Tripura v. Rina Purkayastha, 2023 LiveLaw (SC) 387

Retirement age of Anganwadi workers – the decision cited by the learned counsel dealing with different eventualities and different principles do not provide any basis for issuance of a mandamus to the state government to change its policy, particularly when the policy is otherwise not shown to be suffering from any illegality or irrationality; rather the state is categorical in its submission that by way of this policy, the age of discharge of AWs/AHs is placed at par with those of the other employees of the state government and Public Sectors Undertakings in the state. (Para 11) State of Tripura v. Rina Purkayastha, 2023 LiveLaw (SC) 387

Supreme Court grants notional seniority to private secretaries at Delhi High Court whose marks increased post re-evaluation of answer sheets. Sunil v. High Court of Delhi, 2023 LiveLaw (SC) 374

Seniority – Re-evaluation of Answer Sheets - Once on re-evaluation, the marks are increased the respective candidates whose marks are increased will have to be placed at appropriate place in the merit list. Non-grant of seniority based on revised marks, thus, would render the process of re-evaluation redundant. (Para 7) Sunil v. High Court of Delhi, 2023 LiveLaw (SC) 374

Tax

In 'Works Contract', assessee liable to pay service tax on service element & sales tax on goods transferred. CC and CE and ST, Noida v. Interarch Building Products Pvt. Ltd; 2023 LiveLaw (SC) 393

Waqf

Section 52A of Wakf Act cannot apply to tenants who took possession before enactment of this provision. P.V. Nidhish v. Kerala State Waqf Board, 2023 LiveLaw (SC) 383

STATUTE WISE INDEX

Arbitration and Conciliation Act, 1996; Section 8 - the reliefs claimed in the suit fell outside the arbitration clause contained in the agreement executed between the parties. The court reckoned that the issue raised in the civil suit involved multiple transactions, involving different contracting parties and different agreements, all of which, except for one, did not contain an arbitration clause. Gujarat Composite Ltd. v. A Infrastructure Ltd., 2023 LiveLaw (SC) 384

Arbitration and Conciliation Act, 1996; Section 8 - The Supreme Court has upheld the decision of the Gujarat High Court where it had upheld the rejection of an application filed under Section 8 of the Act in a commercial civil suit, noting that the cause of action of the suit went beyond the transaction containing the arbitration agreement. Gujarat Composite Ltd. v. A Infrastructure Ltd., 2023 LiveLaw (SC) 384

Arbitration and Conciliation Act, 1996; Section 8 - While noting that the reliefs claimed in the suit involved subsequent purchasers of the suit property, which were not signatories to the arbitration agreement, held that, the case did not involve any “doubt” about the non-existence of arbitration agreement in relation to the dispute in question. Gujarat Composite Ltd. v. A Infrastructure Ltd., 2023 LiveLaw (SC) 384

Carriage by Road Act, 2007; Section 16 - Suit and legal proceedings in connection with the loss or damage to the consignment alone are covered by Section 16 for which purpose, a notice is mandatory. The said provision has no application in reference to loss of any other kind or the suit or legal proceedings instituted for recovery of damages in respect of loss of different nature. (Para 17-19) ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378

Central Excise Tariff Act, 1985 - Mere broad-basing of entries under the Act, cannot justify re-classification, without a change in the nature, character or use of the product. The revenue department was not justified in seeking to re-open the settled position in relation to the classification of a product, merely on the ground of the amendment made to the Central Excise Tariff in the year 2012, which had made certain changes in Chapter 30 and Chapter 33. While holding that the said changes had no impact on the product in question, the court by applying the twin test of ‘common/commercial parlance test’ and the ‘ingredients test’, held that the said product merited classification as ‘medicament’ under Chapter 30 and not as ‘cosmetic or toilet preparations’ under Chapter 33 of the First Schedule to the Act. Commissioner of Customs, Central Excise and Service Tax v. Ashwani Homeo Pharmacy, 2023 LiveLaw (SC) 397

Code of Civil Procedure, 1908; Order VII Rule 11 - A plaint which falls within the teeth of the conditions laid down under Rule 11 of Order VII CPC is liable to be rejected at the threshold for which the plaint allegations alone are required to be considered and nothing else. (Para 12) ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378

Code of Civil Procedure, 1908; Order VII Rule 11 - Rejection of Plaint - While deciding the application under Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not the averments in the written statement - Plaint is ought to be rejected when it is vexatious, illusory cause of action and barred by limitation and it is a clear case of clever drafting. (Para 5-8) Ramisetty Venkatanna v. Nasyam Jamal Saheb, 2023 LiveLaw (SC) 372

Code of Civil Procedure, 1908; Order VIII Rule 6–A (4) - A counter-claim is a virtually a plaint and an independent suit. (Para 12) ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378

Code of Criminal Procedure, 1973 - Difference in the power of Police to register and investigate an FIR under Section 154(1) read with 157 of the Code, and the Magistrate’s direction to register an FIR under Section 156(3) of the Code. Power of the Magistrate to direct registration of an FIR under Section 156(3) in contrast with post-cognizance stage power under Section 202 of the Code – Explained. (Para 23 -38) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396

Code of Criminal Procedure, 1973 - Inherent power of the High Court under the Code to quash the FIR – Explained. (Para 19-22) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396

Code of Criminal Procedure, 1973 - Principles in respect of the exercise of power under Section 482 Cr.P.C. – Explained. Peethambaran v. State of Kerala, 2023 LiveLaw (SC) 402

Code of Criminal Procedure, 1973 - Section 173(3) read with Section 158 does not permit the Secretary (Home) to order for further investigation or reinvestigation by another agency - The order passed by the Secretary (Home) transferring the investigation / ordering further investigation by another agency and that too, on the basis of the application / complaint submitted by mother of the accused is unknown to law - In any case, as it is a case of reinvestigation, the same is not permissible and that too by another agency without the prior permission of the learned Magistrate even while exercising the powers under Section 173(8) of the Cr.P.C. (Para 7.1, 7.3) Bohatie Devi v. State of Uttar Pradesh, 2023 LiveLaw (SC) 376

Code of Criminal Procedure, 1973 - The power under the Code to investigate generally consists of following steps: (a) proceeding to the spot; (b) ascertainment of facts and circumstances of the case; (c) discovery and arrest of the suspected offender; (d) collection of evidence relating to commission of offence, which may consist of examination of various persons, including the person accused, and reduction of the statement into writing if the officer thinks fit; (e) the search of places of seizure of things considered necessary for investigation and to be produced for trial; and (f) formation of opinion as to whether on the material collected there is a case to place the accused before the Magistrate for trial and if so, taking the necessary steps by filing a chargesheet under Section 173. (Para 12) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396

Code of Criminal Procedure, 1973; Section 154 - Registration of an FIR - Mandatory nature of Section 154(1) of the Code – Explained. (Para 14-18) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396

Code of Criminal Procedure, 1973; Section 154 and 157 - there is a distinction between Section 154 and 157 as the latter provision postulates a higher requirement than under Section 154 of the Code. Under Section 157(1) of the Code, a Police officer can foreclose the investigation if it appears to him that there is no sufficient ground to investigate. The requirement of Section 157(1) for the Police officer to start investigation is that he has “reason to suspect the commission of an offence”. Therefore, the Police officer is not liable to launch investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence. When the Police officer forecloses investigation in terms of clauses (a) and (b) of the proviso to Section 157(1), he must submit a report to the Magistrate. Here, the Magistrate can direct the Police to investigate, or if he thinks fit, hold an inquiry. Where a Police officer, in a given case, proceeds to investigate the matter, then he files the final report under Section 173 of the Code. The noticeable feature of the scheme is that the Magistrate is kept in the picture at all stages of investigation, but he is not authorised to interfere with the actual investigation or to direct the Police how the investigation should be conducted. (Para 16) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396

Code of Criminal Procedure, 1973; Section 167(2) - Default Bail - If NIA as well as the State investigating agency they want to seek extension of time for investigation, they must be careful that such extension is not prayed for at the last moment - The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the court. However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, or a report seeking extension of time is preferred before the Magistrate or any other competent court, the right to default bail would be extinguished. The court would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.

Code of Criminal Procedure, 1973; Section 167(2) - Filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the CrPC and that an accused cannot claim any indefeasible right of being released on statutory / default bail under Section 167(2) of the CrPC on the ground that cognizance has not been taken before the expiry of the statutory time period to file the chargesheet - Grant of sanction is nowhere contemplated under Section 167 of the CrPC - Once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order. (Para 44, 63) Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377

Code of Criminal Procedure, 1973; Section 167(2), 193 - National Investigation Agency Act, 2008; Section 16 - Error on the part of the investigating agency in filing chargesheet first before the Court of Magistrate has nothing to do with the right of the accused to seek statutory / default bail under Section 167(2) of the CrPC. The committal proceedings are not warranted, when it comes to prosecution under the UAPA by the NIA by virtue of Section 16 of the NIA Act. This is because the Special Court acts as one of the original jurisdictions. By virtue of Section 16 of the NIA Act, the Court need not follow the requirements of Section 193 of the CrPC. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377

Code of Criminal Procedure, 1973; Section 167(2), Section 173 - We find no merit in the principal argument canvassed on behalf of the appellants that a chargesheet filed without sanction is an incomplete chargesheet which could be termed as not in consonance with sub section (5) of Section 173 of the CrPC - Once a final report has been filed with all the documents on which the prosecution proposes to rely, the investigation shall be deemed to have been completed - Once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377

Code of Criminal Procedure, 1973; Section 173 (8) - District Police Chief cannot order further investigation without permission from magistrate or higher court - Power to order further investigation rests with either with the concerned magistrate or with a higher court and not with an investigating agency. Peethambaran v. State of Kerala, 2023 LiveLaw (SC) 402

Code of Criminal Procedure, 1973; Section 389 - the Appellate Court should not reappreciate the evidence at the stage of Section 389 of the Cr.P.C. and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach. (Para 33) Omprakash Sahni v. Jai Shankar Chaudhary, 2023 LiveLaw (SC) 389

Code of Criminal Procedure, 1973; Section 389 - to suspend the substantive order of sentence under Section 389 Cr.P.C., there ought to be something apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable - the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. (Para 33) Omprakash Sahni v. Jai Shankar Chaudhary, 2023 LiveLaw (SC) 389

Code of Criminal Procedure, 1973; Section 41, 154 - To strike a balance, distinction is drawn between power of arrest of an accused person under Section 41 and registration of an FIR under Section 154 of the Code. While registration of an FIR is mandatory, the arrest of the accused on registration of the FIR is not. FIR is registered on the basis of information without any qualification like credible, reasonable or true information. Reasonableness or credibility of information is not a condition precedent for registration of the FIR. However, for making arrest in terms of Section 41(1)(b) or (g), the legal requirements and mandate is reflected in the expression ‘reasonable complaint’ or ‘credible information’. (Para 15) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396

Code of Criminal Procedure, 1973; Section 438 - Anticipatory Bail - Detailed elaboration of evidence has to be avoided at the stage of grant / rejection of bail / anticipatory bail. We do not appreciate such a lengthy elaboration of evidence at this stage - In the matters pertaining to liberty of citizens, the Court should act promptly - An inordinate delay in passing an order pertaining to liberty of a citizen is not in tune with the constitutional mandate. Sumit Subhaschandra Gangwal v. State of Maharashtra, 2023 LiveLaw (SC) 373

Companies Act, 2013 - Upholds the constitutionality of Section 327(7) of the Companies Act, which excludes workers dues from priority payment in the event of liquidation of a company under the Insolvency and Bankruptcy Code 2016 - The object and purpose of amending the Companies Act 2013 and to exclude Sections 326 and 327 in the event of liquidation of a company under IBC seem to be that there may not be two different provisions in respect to the winding up/ liquidation of a company. Therefore, in view of the enactment of the IBC, it was necessary to exclude the applicability of Section 326 and 327 of the 2013 Act, which cannot be said to be arbitrary, as contended on behalf of the petitioners. (Para 6) Moser Baer Karamchari Union v. Union of India, 2023 LiveLaw (SC) 386

Companies Act, 2013; Section 140(5) - Challenge to the constitutional validity of section 140(5) fails - Section 140(5) is neither discriminatory, arbitrary and/or violative of Articles 14, 19(1)(g) of the Constitution of India, as alleged - The application/proceedings under section 140(5) of the Act, 2013 is held to be maintainable even after the resignation of the concerned auditors. (Para 16) Union of India v. Deloitte Haskins and Sells LLP, 2023 LiveLaw (SC) 388

Constitution of India, 1950; Article 32, 226 - The parties should not be permitted to file a writ petition under Article 32 of the Constitution of India, or for that matter under Article 226 of the Constitution of India before the High Court, and seek divorce on the ground of irretrievable breakdown of marriage. (Para 41) Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Customs Act, 1962 - The Supreme Court delivered a split verdict in respect to the issue whether jurisdiction of Settlement Commission under Section 127B of the Customs Act, 1962 can be invoked in relation to goods to which Section 123 applies. While considering the conflicting judgments of the Bombay High Court and the Delhi High Court the bench expressed divergent views. Supporting the law laid down by the Bombay High Court, Justice Krishna Murari opined that in cases of seizures of smuggled goods within the customs areas, Section 123 of the Customs Act would not be applicable and the accused can make application to Settlement Commission under Section 127B. Justice Sanjay Karol opined that the bar in Section 127B precludes filing an application for settlement in relation to goods to which Section 123 applies [for example gold and watches are specified under S.123]. The Division Bench asked the Registry to place the matter before the Chief Justice of India for appropriate order. Yamal Manojbhai v. Union of India, 2023 LiveLaw (SC) 399

Evidence Act, 1872; Section 101 and 106 – Burden of proving fact especially within knowledge - Section 106 of the Act is an exception to the rule which is Section 101 of the Act, and it comes into play only in a limited sense where the evidence is of a nature which is especially within the knowledge of that person and then the burden of proving that fact shifts upon him that person. The burden of proof is always with the prosecution. It is the prosecution which has to prove its case beyond a reasonable doubt. Section 106 of the Act does not alter that position. It only places burden for disclosure of a fact on the establishment of certain circumstances. (Para 12) Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395

Evidence Act, 1872; Section 106 – Last Seen Theory - What has to be kept in mind is that Section 106 of the Act, only comes into play when the other facts have been established by the prosecution. In this case when the evidence of last seen itself is on a weak footing, considering the long gap of time between last seen by PW­10 and the time of death of the deceased. Section 106 of the Act would not be applicable under the peculiar facts and the circumstances of the case. In the present case the prosecution has not been able to prove its case beyond reasonable doubt. The evidence of last seen, only leads upto a point and no further. It fails to link it further to make a complete chain. All we have here is the evidence of last seen, which as we have seen looses much of its weight under the circumstances of the case, due to the long duration of time between last seen and the possible time of death. (Para 13, 15) Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395

Evidence Act, 1872; Section 27 - As far as the recovery is concerned, the recovery is again weak. The so­called alleged place of crime and the recovery of tractor or the place where the tractor was abandoned had already been disclosed by the co­accused by the time the present appellant was arrested. Therefore, making a disclosure about the place of occurrence or the place where the tractor was abandoned is of no consequence. As far as the recovery of watch, currency notes of Rs. 250/­, hair and ‘Parna’ from the residence of the accused are concerned, the currency notes and hair have not been identified with the deceased. What we can call as discovery here under Section 27 of the Act, is the discovery of ‘Parna’ and watch of the deceased. This evidence in itself is not sufficient to fix guilt on the accused. (Para 15) Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395

Hindu Marriage Act, 1955; Section 13B(2) - Waiting period for mutual consent divorce can be waived by Supreme Court invoking Article 142 powers - this Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution - This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Insolvency and Bankruptcy Code 2016; Section 53 - Waterfall mechanism - Complete code - The waterfall mechanism is based on a structured mathematical formula, and the hierarchy is created in terms of payment of debts in order of priority with several qualifications, striking down any one of the provisions or rearranging the hierarchy in the waterfall mechanism may lead to several trips and disrupt the working of the equilibrium as a whole and stasis, resulting in instability. Every change in the waterfall mechanism is bound to lead to cascading effects on the balance of rights and interests of the secured creditors, operational creditors and even the Central and State Government. (Para 16) Moser Baer Karamchari Union v. Union of India, 2023 LiveLaw (SC) 386

Insolvency and Bankruptcy Code, 2016 - Section 53 - the distribution of the assets shall have to be made as per Section 53 of the IBC subject to Section 36(4) of the IBC, in case of liquidation of company under IBC - Exclusion of Sections 326 and 327 of Companies Act 2013 in the event of liquidation of company as per IBC not arbitrary. (Para 18) Moser Baer Karamchari Union v. Union of India, 2023 LiveLaw (SC) 386

Penal Code, 1860; Section 302 - the circumstances in which the accused is said to have administered poison to her two sons is clearly reflective of her being under a state of tremendous mental stress. However, it is difficult to grant the benefit of bringing the case under the ambit of culpable homicide not amounting to murder. Be that as it may, the Court is not pursuaded to convert the conviction from Section 302, IPC to one under Section 304 Part I, IPC. (Para 10) Nagarathinam v. State through the Inspector of Police, 2023 LiveLaw (SC) 401

Penal Code, 1860; Section 420 - Ingredients to constitute an offence of cheating - Explained. Peethambaran v. State of Kerala, 2023 LiveLaw (SC) 402

Representation of the People’s Act, 1951 - An Election petition can be summarily dismissed on the omission of a single material fact leading to an incomplete cause of action, or omission to contain a concise statement of material facts on which the petitioner relies for establishing a cause of action, in exercise of the powers under Clause (a) of Rule 11 of Order VII CPC read with the mandatory requirements enjoined by Section 83 of the RP Act. Kanimozhi Karunanidhi v. A. Santhana Kumar, 2023 LiveLaw (SC) 398

Representation of the People’s Act, 1951 - In order to get an election declared as void under Section 100(1)(d)(iv) of the RP Act, the Election petitioner must aver that on account of non-compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the result of the election, in so far as it concerned the returned candidate, was materially affected. Kanimozhi Karunanidhi v. A. Santhana Kumar, 2023 LiveLaw (SC) 398

Representation of the People’s Act, 1951 - Material facts mean the entire bundle of facts which would constitute a complete cause of action. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. Kanimozhi Karunanidhi v. A. Santhana Kumar, 2023 LiveLaw (SC) 398

Representation of the People’s Act, 1951 - The Election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses it as a handle for vexatious purpose. Kanimozhi Karunanidhi v. A. Santhana Kumar, 2023 LiveLaw (SC) 398

Representation of the People’s Act, 1951 - The material facts must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action, that is every fact which it would be necessary for the plaintiff/petitioner to prove, if traversed in order to support his right to the judgement of court. Omission of a single material fact would lead to an incomplete cause of action and the statement of plaint would become bad. Kanimozhi Karunanidhi v. A. Santhana Kumar, 2023 LiveLaw (SC) 398

Representation of the People’s Act, 1951; Section 83(1)(a) - Election petition shall contain a concise statement of material facts on which the petitioner relies. If material facts are not stated in an Election petition, the same is liable to be dismissed on that ground alone, as the case would be covered by Clause (a) of Rule 11 of Order 7 of the Code. Kanimozhi Karunanidhi v. A. Santhana Kumar, 2023 LiveLaw (SC) 398

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; Section 13 - Auction cannot be stayed just because the sale agreement holder offered to pay dues, when the borrower hasn't invoked S.13(8). G. Vikram Kumar v State Bank of Hyderabad, 2023 LiveLaw (SC) 394

Service Tax (Determination of Value) Rules, 2006; Rule 2A - Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007; Rule 3(1) - the value of the service portion in the execution of the works contract has to be determined as per Rule 2A of Service Tax Rules, or as per the Composition Scheme, if adopted by the assessee, and that the assessee has to pay service tax on the service element and can claim CENVAT Credit only on the said amount - set aside the judgement and order passed by the CESTAT, where it had held that the assessee was entitled to take the total contract value, which included both goods and services, and remit service tax on the entire value as ‘works contract’ and that the assessee was also entitled to avail the CENVAT Credit on the whole amount - upheld the order of the Adjudicating Authority that the respondent-assessee was not entitled to avail CENVAT Credit on Central Excise duty paid on inputs (building material) used in or in relation to the said works contract. CC and CE and ST, Noida v. Interarch Building Products Pvt. Ltd; 2023 LiveLaw (SC) 393

Supreme Court Rules, 2013; Order XLVII Rule 3 - Disposal of review petitions by circulation without any oral arguments - The decision of this Court in P N Eswara Iyer v Supreme Court of India (1980) 4 SCC 680 does not warrant any reconsideration - The challenge to the provisions of Rule 3 of Order XLVII of the Supreme Court Rules 2013 lacks substance. P.T. Mohan v. Registrar Supreme Court of India, 2023 LiveLaw (SC) 379

Wakf Act, 1995; Section 52A - Criminal proceedings under Section 52A cannot be maintained against persons who were in possession of the Wakf property when the said provision was introduced in 2013 and continue to remain in possession after the expiry of lease, contesting civil proceedings for eviction - the expiry of leases, or other arrangements, by efflux of time or their valid terminations, in the past, does not mean that such lessees become “encroachers”. (Para 22) P.V. Nidhish v. Kerala State Waqf Board, 2023 LiveLaw (SC) 383

NOMINAL INDEX

1. All India Judges Association v. Union of India, 2023 LiveLaw (SC) 385
2. Balwant Singh v. Union of India, 2023 LiveLaw (SC) 391
3. Bohatie Devi v. State of Uttar Pradesh, 2023 LiveLaw (SC) 376
4. Career Institute Educational Society v. Om Shree Thakurji Educational Society, 2023 LiveLaw (SC) 380
5. CC and CE and ST, Noida v. Interarch Building Products Pvt. Ltd; 2023 LiveLaw (SC) 393
6. Commissioner of Customs, Central Excise and Service Tax v. Ashwani Homeo Pharmacy, 2023 LiveLaw (SC) 397
7. Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395
8. ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378
9. G. Vikram Kumar v State Bank of Hyderabad, 2023 LiveLaw (SC) 394
10. Government of Tamil Nadu v. R. Thamaraiselvam, 2023 LiveLaw (SC) 400
11. Gujarat Composite Ltd. v. A Infrastructure Ltd., 2023 LiveLaw (SC) 384
12. In Re: T. N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 392
13. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377
14. Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396
15. Kanimozhi Karunanidhi v. A. Santhana Kumar, 2023 LiveLaw (SC) 398
16. Moser Baer Karamchari Union v. Union of India, 2023 LiveLaw (SC) 386
17. Nagarathinam v. State through the Inspector of Police, 2023 LiveLaw (SC) 401
18. Omprakash Sahni v. Jai Shankar Chaudhary, 2023 LiveLaw (SC) 389
19. P.T. Mohan v. Registrar Supreme Court of India, 2023 LiveLaw (SC) 379
20. P.V. Nidhish v. Kerala State Waqf Board, 2023 LiveLaw (SC) 383
21. Peethambaran v. State of Kerala, 2023 LiveLaw (SC) 402
22. Prasanna v. Mudegowda, 2023 LiveLaw (SC) 381
23. Ramisetty Venkatanna v. Nasyam Jamal Saheb, 2023 LiveLaw (SC) 372
24. Sachit Kumar Singh v. State of Jharkhand, 2023 LiveLaw (SC) 382
25. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375
26. State of Andhra Pradesh v. Varla Ramaiah, 2023 LiveLaw (SC) 390
27. State of Tripura v. Rina Purkayastha, 2023 LiveLaw (SC) 387
28. Sumit Subhaschandra Gangwal v. State of Maharashtra, 2023 LiveLaw (SC) 373
29. Sunil v. High Court of Delhi, 28 Apr 2023 2023 LiveLaw (SC) 374
30. Union of India v. Deloitte Haskins and Sells LLP, 2023 LiveLaw (SC) 388
31. Yamal Manojbhai v. Union of India, 2023 LiveLaw (SC) 399