The Supreme Court of India has pronounced numerous judgments in the month of September, 2020. In this write-up, the important pronouncements are briefly discussed. Subed Ali and Others v. State of Assam, Criminal Appeal No. 1401 of 2012 (Decided on30/09/2020). A Bench of Justices R.F. Nariman, Navin Sinha and Indira Banerjee, held that it is not necessary that an accused must...
The Supreme Court of India has pronounced numerous judgments in the month of September, 2020. In this write-up, the important pronouncements are briefly discussed.
Subed Ali and Others v. State of Assam, Criminal Appeal No. 1401 of 2012 (Decided on30/09/2020).
A Bench of Justices R.F. Nariman, Navin Sinha and Indira Banerjee, held that it is not necessary that an accused must be actively involved in the physical activity of assault to convict him on the ground of common intention. It was observed that common intention consists of several persons acting in unison to achieve a common purpose, though their roles may be different. The role may be active or passive is irrelevant, once common intention is established. The Bench observed that there can hardly be any direct evidence of common intention and it is more a matter of inference to be drawn from the facts and circumstances of a case based on the cumulative assessment of the nature of evidence available against the participants.
A Single-Judge Bench of Justice V. Ramasubramanian, held that that the issue of jurisdiction of a court to try an offence or offender as well as the issue of territorial jurisdiction, depend upon facts established through evidence. It was held that if the issue is one of territorial jurisdiction, the same has to be decided with respect to the various rules enunciated in sections 177 to 184 of the Code of Criminal Procedure, 1973 and these questions may have to be raised before the court trying the offence and such court is bound to consider the same. It was observed that the words "tries an offence" are more appropriate than the words "tries an offender" in section 461(l) of the Code of Criminal Procedure, 1973 because lack of jurisdiction to try an offence cannot be cured by section 462 and hence section 461, could include the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void. It was further observed that the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of section 462, provided there is no other bar for the court to try the said offender but Section 461(l) makes the proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do.
Maheshwar Tigga v. State of Jharkhand, Criminal Appeal No. 635 of 2020 (Decided on28/09/2020).
A Bench of Justices R.F. Nariman, Navin Sinha and Indira Banerjee, acquitted a man accused of raping a woman on the pretext of marriage, and held that under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law but the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. The Bench observed that it hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship and beatings given to her. The Court concluded that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body which according to normal human behaviour are permitted only to a person with whom one is deeply in love.
A Bench of Justices Dhananjaya Y. Chandrachud, Indu Malhotra and K.M. Joseph, held that with the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance. It was also held that the Schedule to an act is a part of the act and therefore an amendment to the Schedule by virtue of a notification is an amendment to the Act itself. Delegated legislation is legislative in character but if it is to be a Central Act within the meaning of Section 5 of General Clauses Act, it must be made by the legislature. Delegated legislation which is called administrative legislation in England, is exercise of legislative power by the executive. The author of the legislative effort is the executive and in the scheme of the Customs Act, the Tariff Act and the 2018 Regulations, the time at which the notification under Section 8A of the Customs Tariff Act, 1975, is published would have relevance.
A Bench of Justices S. Abdul Nazeer, Indu Malhotra and Aniruddha Bose, held that enforcement of an arbitral award may be refused only if it violates the enforcement State's most basic notions of morality and justice, which has been interpreted to mean that there should be great hesitation in refusing enforcement, unless it is obtained through corruption or fraud, or undue means. It was observed that the enforcement court would examine the challenge to the award in accordance with the law and merely because the Malaysian Courts have upheld the award, it would not be an impediment for the Indian courts to examine whether the award was opposed to the public policy of India under Section 48 of the Indian Arbitration Act, 1996. The enforcement court would not review the correctness of the judgment of the Seat Courts, while deciding the challenge to the award and the period of limitation for filing a petition for enforcement of a foreign award under Sections 47 and 49 of the Arbitration and Conciliation Act, would be governed by Article 137 of the Limitation Act, 1963 which prescribes a period of three years from when the right to apply accrues. The power to set aside a foreign award vests only with the court at the seat of arbitration, since the supervisory or primary jurisdiction is exercised by the curial courts at the seat of arbitration. The enforcement court may refuse enforcement of a foreign award, if the conditions contained in Section 48 are made out.
Abhilashav. Parkash and Others, Criminal Appeal No. 615 of 2020 (Decided on 15/09/2020).
A Bench of Justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah, held that an unmarried Hindu daughter can claim maintenance from her father till she is married relying on Section 20(3) of the Hindu Adoptions & Maintenance Act, 1956, provided she pleads and proves that she is unable to maintain herself, for enforcement of which right her application/suit has to be under Section 20 of Act, 1956. It was observed by the Bench that the provision of Section 20 of the Hindu Adoptions & Maintenance Act, 1956 casts clear statutory obligation on a Hindu to maintain his unmarried daughter who is unable to maintain herself. The right of unmarried daughter under Section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is right granted under personal law, which can very well be enforced by her against her father. Unmarried daughter is clearly entitled for maintenance from her father till she is married even though she has become major, which is a statutory right recognised by Section 20(3) and can be enforced by unmarried daughter in accordance with law. The Bench also noted that the purpose and object of Section 125 Cr.P.C. is to provide immediate relief to applicant in a summary proceedings, whereas right under Section 20 read with Section 3(b) of the Hindu Adoptions & Maintenance Act, 1956, contains larger right, which needs determination by a Civil Court, hence for the larger claims as enshrined under Section 20, the proceedings need to be initiated under Section 20 of the Act and the legislature never contemplated to burden the Magistrate while exercising jurisdiction under Section 125 Cr.P.C. to determine the claims contemplated by Act of 1956.
RizwanKhan v. State of Chhattisgarh, Criminal Appeal No. 580 of 2020 (Decided on10/09/2020).
A Bench of Justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah, held that to prove the case under the NDPS Act, the ownership of the vehicle is not required to be established and proved. It is enough to establish and prove that the contraband articles were found from the accused from the vehicle purchased by the accused. Ownership of the vehicle is immaterial. What is required to be established and proved is the recovery of the contraband articles and the commission of an offence under the NDPS Act. Merely because of the ownership of the vehicle is not established and proved and/or the vehicle is not recovered subsequently, trial is not vitiated.
A Bench of Justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah, held that there is no hard and fast rule that in a case of single injury Section 302 IPC would not be attracted and it depends upon the facts and circumstances of each case. It was observed that the nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. It cannot be laid down as a rule of universal application that whenever the death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case, the events which precede will also have a bearing on the issue whether the act by which the death was caused was done with an intention of causing death or knowledge that it is likely to cause death, but without intention to cause death. It is the totality of the circumstances which will decide the nature of offence.
A Bench of Justices R.F. Nariman, Navin Sinha and Indira Banerjee, held that Bangalore Club being a social club, is not liable to pay wealth tax under the Wealth Tax Act as the persons who are banded together do not band together for any business purpose or commercial purpose in order to make income or profits. The Bench observed that Bangalore Club is an association of persons and not the creation, by a person who is otherwise assessable, of one among a large number of associations of persons without defining the shares of the members so as to escape tax liability. It was observed that it is clear that in order to be an association of persons attracting Section 21AA of the Wealth Tax Act, it is necessary that persons band together with some business or commercial object in view in order to make income or profits and the presumption gets strengthened by the language of Sec. 21AA (2), which speaks of a business or profession carried on by an association of persons which then gets discontinued or dissolved. The thrust of the provision is to rope in associations of persons whose common object is a business or professional object, namely, to earn income or profits.
A Bench of Justices A.M. Khanwilkar and Dinesh Maheshwari, held that an essential requirement for application of a legislation retrospectively is to show that the previous legislation had any omission or ambiguity or it was intended to explain an earlier act. The Court observed that it is a settled proposition of law that all laws are deemed to apply prospectively unless either expressly specified to apply retrospectively or intended to have been done so by the legislature. The latter would be a case of necessary implication and it cannot be inferred lightly.
(Muneeb Rashid Malik is a student of law and can be reached at muneebrashidmalik@gmail.com. He tweets - @muneebmalikrash).