Supreme Court Monthly Digest: August 2021 [Citation LL 2021 SC 336 To LL 2021 SC 408]

1. Possible Apprehension Of Breach Of 'Law And Order ' Cannot Be A Ground For Preventive Detention

[Case: Banka Sneha Sheela v. State of Telangana; Citation: LL 2021 SC 336]

A Bench comprising Justice RF Nariman and Justice Hrishikesh Roy observed that a possible apprehension of breach of law and order cannot be a ground to detain a person under Preventive Detention Laws. It opined that mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects 'law and order' but before it can be said to affect 'public order', it must affect the community or the public at large. "A Preventive Detention Order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order", the bench observed while quashing a detention order passed against a person under Telangana Prevention of Dangerous Activities Act. 

"There can be no doubt that for 'public order' to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects 'law and order' but before it can be said to affect 'public order', it must affect the community or the public at large", the Bench further added. 

2. Entity Which Misuses Status Under Section 12AA Income Tax Act Not Entitled To Retain It

[Case: Commissioner of Income Tax (Exemption) v. Batanagar Education and Research Trust; Citation: LL 2021 SC 337]

An entity which is misusing the status conferred upon it by Section 12AA of the Income Tax Act is not entitled to retain and enjoy said status, the Supreme Court observed while upholding the cancellation of a registration of Trust. Section 12AA of the Income Tax Act deals with the procedure for the registration of a charitable trust, which is entitled to tax benefits. In this case, Commissioner of Income Tax (Exemption) cancelled registration of the Trust under Section 12AA of the Income Tax Act, 1961 on the ground that the Trust had received bogus donation from School of Human Genetics and Population Health. The Income Tax Appellate Tribunal dismissed the appeals filed by the Trust. The Calcutta High Court allowed the appeal filed by the Trust and set aside the cancellation order.

A Bench comprising Justices Uday Umesh Lalit and Ajay Rastogi noted that the answers given to the questionnaire by the Managing Trustee of the Trust show the extent of misuse of the status enjoyed by the Trust by virtue of registration under Section 12AA of the Act. "These answers also show that donations were received by way of cheques out of which substantial money was ploughed back or returned to the donors in cash. The facts thus clearly show that those were bogus donations and that the registration conferred upon it under Sections 12AA and 80G of the Act was completely being misused by the Trust. An entity which is misusing the status conferred upon it by Section 12AA of the Act is not entitled to retain and enjoy said status. The authorities were therefore, right and justified in cancelling the registration under Sections 12AA and 80G of the Act.", the Court observed while setting aside the High Court order. 

3. 'Avoid Unnecessary Remarks On Counsel's Conduct': Supreme Court Expunges Remarks Made Against Lawyer By Uttarakhand High Court

[Case: Neeraj Garg v. Sarita Rani; Citation: LL 2021 SC 338]

The Supreme Court observed that judges should avoid unnecessary remarks on the conduct of the counsel which may have no bearing on the adjudication of the dispute before the Court. The bench comprising Justices RF Nariman and Hrishikesh Roy observed thus while ordering expunction of certain remarks made against a lawyer by the Uttarakhand High Court in an order passed by it. The lawyer, with 17 year standing, had approached the Apex Court seeking expunction of some adverse remarks made against him in a judgment. He contended that he should not be made to suffer adverse comments on his conduct as a lawyer only because the concerned Judge may not appreciate the efforts made by the Counsel, on behalf of his client.

"While it is of fundamental importance in the realm of administration of justice to allow the judges to discharge their functions freely and fearlessly and without interference by anyone, it is equally important for the judges to be exercising restraint and avoid unnecessary remarks on the conduct of the counsel which may have no bearing on the adjudication of the dispute before the Court.", the Court stated. 

4. 'Heavy Unexplained Bank Transactions': Supreme Court Upholds Compulsory Retirement Penalty Imposed On Judicial Officer

[Case: Rajinder Goel v. High Court of Punjab & Haryana; Citation: LL 2021 SC 339]

The Supreme Court upheld an order directing compulsory retirement of a Judicial Officer in Haryana. In this case, the disciplinary proceedings were initiated against a judicial officer after preliminary enquiry against him revealed that there were "heavy unexplained bank transactions". The Inquiring Authority submitted a report on 23.05.2016 finding the petitioner guilty of unexplained transactions. However, the vigilance/Disciplinary Committee of the High Court found that the charges levelled against the petitioner were not proved and recommended that he be cleared of all the charges. But the Full court of the Punjab and Haryana High Court refused to accept these recommendations and resolved to impose compulsory retirement penalty. Later, the Competent Authority passed order compulsorily retiring him from the membership of Haryana Superior Judicial Service. Challenging these orders, the judicial officer approached the Apex Court by filing the writ petition.

"Considering the facts and circumstances on record and in view of the record indicating that there were multiple transactions showing deposits and withdrawals of substantial amounts of money, it cannot be said that the Full Court was not justified in taking the view that it did. We do not find any reason to take a different view in the matter.", the bench comprising Justices Uday Umesh Lalit and Ajay Rastogi observed while dismissing the writ petition. It also refused the plea to withdraw the writ petition.

5. Second Appeal, After Its Admission With Formulation Of Substantial Question Of Law, Cannot Be Disposed Of Summarily

[Case: Ramdas Waydhan Gadlinge (Since Deceased) v. Gyanchand Nanuram Kriplani (Dead); Citation: LL 2021 SC 340]

A second appeal, after its admission with formulation of substantial question of law, cannot be disposed of summarily, the Supreme Court has observed. The bench of Justices Vineet Saran and Dinesh Maheshwari observed that once a second appeal is admitted, on the High Court being satisfied that a substantial question of law is involved in the case and with formulation of that question, the appeal is required to be heard in terms of Order XLII of Code of Civil Procedure.In this case, the High Court had admitted the second appeal by the defendant (substituted by his legal representatives) and framed substantial questions of law. Later, the same was dismissed. 

"Once a second appeal is admitted, on the High Court being satisfied that a substantial question of law is involved in the case and with formulation of that question, the appeal is required to be heard in terms of Order XLII CPC. A look at Order XLII CPC makes it clear that except for the limitations envisaged by Rule 2 thereof read with Section 100, the rules of Order XLI do apply, so far as may be, for the purpose of hearing of the second appeal, i.e., an appeal from appellate decree...Obviously, a second appeal, after its admission with formulation of substantial question of law, cannot be disposed of summarily. The Court has further power to hear the appeal on any other substantial question of law if not formulated earlier for reasons to be recorded", the Bench further added. 

6. Mere Harassment Will Not Amount To Abetment Of Suicide U/s 306 IPC

[Case: Shabbir Hussain v. State of Madhya Pradesh; Citation: LL 2021 SC 341]

Mere harassment would not amount to an offence of abetment of suicide under Section 306 of the Indian Penal Code, the Supreme Court has reiterated. The bench of Justices L. Nagaswera Rao and Aniruddha Bose observed that, in order to bring a case within Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide.

"In order to bring a case within the provision of Section 306 IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigating or by doing a certain act to facilitate the commission of suicide. Mere harassment without any positive action on the part of the accused proximate to the time of occurrence which led to the suicide would not amount to an offence under Section 306 IPC.", the bench said referring to the judgment in Amalendu Pal v. State of West Bengal.

7. Accused's Burden To Prove His Defence Taken U/s 313 CrPC Is Not Beyond All Reasonable Doubts

[Case: Pramila v. State of Uttar Pradesh; Citation: LL 2021 SC 342]

The Supreme Court has observed that the burden of proof on an accused in support of the defence taken under Section 313 of Code of Criminal Procedure is not beyond all reasonable doubt as it lies on the prosecution to prove the charge. The accused has merely to create a doubt and it is for the prosecution then to establish beyond reasonable doubt that no benefit can flow from the same to the accused, the bench of Justices Navin Sinha and R. Subhash Reddy said while acquitting a woman accused of murdering her sister in law. 

"We are of the considered opinion that in absence of any question having been put to her in this regard under Section 313 CrPC the appellant has been seriously prejudiced in her defence. It has repeatedly been held that the procedure under Section 313 CrPC is but a facet of the principles of natural justice giving an opportunity to an accused to present the defence. The burden of proof on an accused in support of the defence taken under Section 313 CrPC is not beyond all reasonable doubt as it lies on the prosecution to prove the charge. The accused has merely to create a doubt. It will be for the prosecution then to establish beyond reasonable doubt that no benefit can flow from the same to the accused. The mere fact that the house of the appellant was at near quarters cannot ipso facto lead to a conclusion with regard to her presence in her parental home at the time of occurrence. It is a fact to be established and assessed from the evidence on record.", the court stated. 

8. Writ Jurisdiction Not For Deciding 'Hotly Disputed Questions Of Facts'

[Case: Shubas Jain v. Rajeshwari Shivam; Citation: LL 2021 SC 343]

The Supreme Court has reiterated that a High Court cannot invoke its writ jurisdiction to adjudicate 'hotly disputed questions of facts'. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable, the bench of Justices Indira Banerjee and V. Ramasubramanian said. The case arises out of a dispute between landlord and a tenant regarding repair of an old building. The Bombay High Court, in writ petition filed by a tenant passed the order granting liberty to commence the work of removal of a wall with the assistance of architects, at his own risk and costs. The writ petition was filed challenging the notice issued by the Municipal Corporation under Section 354 of the Municipal Corporation Act

"It is well settled that the High Court exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of India, does not adjudicate hotly disputed questions of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable.", the bench observed while allowing the appeal. 

9. Quashing Of FIR: Detailed Enquiry On Merits Not Warranted U/s 482 CrPC

[Case: State of Madhya Pradesh v. Kunwar Singh; Citation: LL 2021SC 344]

The Supreme Court has reiterated that a detailed enquiry into the merits of the allegations is not warranted while exercising jurisdiction under Section 482 of the Criminal Procedure Code. The bench comprising Justices DY Chandrachud and MR Shah observed that while exercising jurisdiction under Section 482 of the Criminal Procedure Code, the High Court ought not to be scrutinizing the material in the manner in which the trial court would do in the course of the criminal trial after evidence is adduced. FIR is not expected to be an encyclopedia, the bench said setting aside a Madhya Pradesh High Court judgment which quashed a criminal case against a Block Medical Officer.

"At this stage, the High Court ought not to be scrutinizing the material in the manner in which the trial court would do in the course of the criminal trial after evidence is adduced. In doing so, the High Court has exceeded the well-settled limits on the exercise of the jurisdiction under Section 482 of CrPC. A detailed enquiry into the merits of the allegations was not warranted. The FIR is not expected to be an encyclopedia, particularly, in a matter involving financial irregularities in the course of the administration of a public scheme. A final report has been submitted under Section 173 of CrPC, after investigation.", the bench said while setting aside the High court order.

10. Governor Can Exercise Pardon Power Even If Prisoner Has Not Undergone 14 Years Imprisonment

[Case: State of Haryana v. Rajkumar @ Bittu; Citation: LL 2021 SC 345]

The Supreme Court has observed that the power of Governor under Article 161 of the Constitution to commute sentence or to pardon will override the restrictions imposed under Section 433-A of the Criminal Procedure Code. Even if the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person, the bench comprising Justices Hemant Gupta and AS Bopanna observed. The court was considering an appeal filed by the State against the Punjab and Haryana High Court order which directed it to consider fresh policies in respect of exercise of powers conferred under Article 161 of the Constitution. The issue in appeal was about the applicability of policy dated 12.4.2002 or the policy dated 13.8.2008 to the prisoner convicted on 25.3.2010.

"The power under Article 161 of the Constitution can be exercised by the State Governments, not by the Governor on his own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group. Therefore, the policies of the State Government are composite policies encompassing both situations under Article 161 of the Constitution and Sections 432, 433 and 433-A of the Code. The remission under Article 161 of the Constitution will override Section 433-A of the Code, if the State Government decides to be governed of its constitutional power", the Bench held while setting aside the High Court's directions. 

11. State Cannot Plead Financial Burden To Deny Salary For Legally Serving Doctors

[Case: North Delhi Municipal Corporation v. Dr. Ram Naresh Sharma and others; Citation: LL 2021 SC 346]

The Supreme Court has observed that the state cannot be allowed to plead financial burden to deny salary to legally serving doctors. Allowing such an excuse raised by the state would amount to violation of fundamental rights under Articles 14(right to equality) , 21(right to life) and 23 (right against bonded labour) of the Constitution. "The State cannot be allowed plead financial burden to deny salary for the legally serving doctors. Otherwise it would violate their rights under Articles 14, 21 and 23 of the Constitution", the judgment delivered by a bench comprising Justices L Nageswara Rao and Hrishikesh Roy observed. 

The Court made this observation while disapproving the stand taken by the New Delhi Municipal Corporation against payment of salary arrears to ayurvedic doctors who had continued in service for five years under the protection of orders passed by the Central Administrative Tribunal and the Delhi High Court. Rejecting the NDMC's plea of financial difficulty, the Supreme Court observed, "We are quite clear in our mind that the respondents must be paid their lawful remuneration­ arrears and current, as the case may be. The State cannot be allowed plead financial burden to deny salary for the legally serving doctors. Otherwise it would violate their rights under Articles 14, 21 and 23 of the Constitution".

12. Witness Cannot Be Prosecuted For Perjury U/s 193 IPC For Mere Inconsistency In His Statements

[Case: N.S. Nandiesha Reddy v. Kavitha Mahesh; Citation: LL 2021 SC 347]

The Supreme Court has observed that a witness cannot be prosecuted for perjury under Section 193 of the Indian Penal Code merely because he made inconsistent statements before the Court. The bench led by CJI NV Ramana observed that the prosecution for perjury cannot be ordered if there is no intentional falsehood uttered. Mere reference to inconsistent statements alone is not sufficient to take action unless a definite finding is given that they are irreconcilable; one is opposed to the other so as to make one of them deliberately false, the court said.

"Even in a case where the Court comes to the conclusion on the aspect of intentional false evidence, still the Court has to form an opinion whether it is expedient in the interest of justice to initiate an inquiry into the offences of false evidence, having regard to the overall factual matrix as well as the probable consequences of such prosecution. The Court must be satisfied that such an inquiry is required in the interest of justice and is appropriate in the facts of the case.", the bench also comprising Justices AS Bopanna and Hrishikesh Roy added.

13. Suit For Eviction Maintainable Before Wakf Tribunal If Tenant Disputes That Property Is Not A Wakf

[Case: Telangana State Wakf Board v. Mohamed Muzafar; Citation: LL 2021 SC 348]

The Supreme Court has observed that a suit for eviction is maintainable before a Wakf Tribunal if the tenant disputed that the property is not a wakf. This is because the question whether a property belongs to wakf is exclusively triable by the Wakf Tribunal. In this case, the Telangana State Wakf Board filed a suit before the Andhra Pradesh State Wakf Tribunal, Hyderabad seeking eviction of the defendant from the property belonging to the Wakf institution. The defendant filed his written statement wherein inter alia he had contended that the suit property is not a Wakf property. The Wakf tribunal decreed the suit holding the suit schedule properties to be the property belongs to the Wakf institution and directed the defendant to vacate the suit schedule properties. In revision petition filed by the defendant, the High Court, referring to the decision of this Court in the case of Ramesh Gobindram v. Sugra Humayun Mirza Wakf (2010) 8 SCC 726; held that the suit was not maintainable before the Wakf tribunal and has allowed the parties to avail their remedy as per law.

A Bench comprising Justices Hemant Gupta and AS Bopanna observed that the facts and circumstance in each case will have to be ken note in the background of the legal frame work contained in the Wakf Act to determine jurisdiction. In this case, the Wakf Board had got issued a notice to the defendant terminating the tenancy relating to the schedule property. But in his reply notice, the defendant had denied that the property in question was a Wakf property. "In the said circumstance, the instant case cannot be deemed as an admitted case of the property being Wakf property as in the reply notice itself the respondent had disputed the same. It is in that circumstance the appellants being of the impression that the first issue to be established is that the property in question is the Wakf property, which could be considered by the tribunal, had filed the suit before the Wakf tribunal.", the bench observed.

14. Money Decree/Certificate Of Recovery In Favour Of Financial Creditor Gives Fresh Cause Of Action To Initiate CIRP U/s 7 IBC

[Case: Dena Bank v. C. Shivakumar Reddy; Citation: LL 2021 SC 349]

The Supreme Court has observed that a judgment and/or decree for money in favour of the Financial Creditor, or the issuance of a Certificate of Recovery in its favour, would give rise to a fresh cause of action for the Financial Creditor, to initiate proceedings under Section 7 of the IBC for initiation of the Corporate Insolvency Resolution Process. Such judgment/decree may be passed by the Debt Recovery Tribunal, or any other Tribunal or Court, and in such cases Insolvency Resolution Process can be initiated, within three years from the date of the judgment and/or decree or within three years from the date of issuance of the Certificate of Recovery, if the dues of the Corporate Debtor to the Financial Debtor, or any part thereof remained unpaid, the court held.

The bench comprising Justices Indira Banerjee and V. Ramasubramanian also observed that an application under Section 7 of the Insolvency and Bankruptcy Code would not be barred by limitation, on the ground that it had been filed beyond a period of three years from the date of declaration of the loan account of the Corporate Debtor as NPA, if there were an acknowledgement of the debt by the Corporate Debtor before expiry of the period of limitation of three years. In such a case, the period of limitation would get extended by a further period of three years, the court observed.

Also Read: No Bar In Permitting Amendment Of Pleadings Or Filing Of Additional Documents In CIRP Application U/s 7 IBC

15. Offences Committed Outside India: Previous Sanction Of Central Govt U/S 188 CrPC Not Required At The Stage Of Cogizance But Trial Can't Be Commenced Without It

[Case: Nerella Chiranjeevi Kumar v. State of Andhra Pradesh; Citation: LL 2021 SC 350]

The Supreme Court has observed that the trial of the criminal case against an Indian citizen for offences committed outside India cannot commence without sanction of the Central Government under Section 188 of the Code of Criminal Procedure. But such previous sanction is not required at the stage of cognizance, the bench comprising Justices L. Nageswara Rao and Aniruddha Bose said. In this case, the contention of the accused before the High court in his petition under Section 482 CrPC was that the alleged offences were committed in the USA and in accordance with Section 188 of the Cr.P.C., sanction from the Central Government is required even for initiation of investigation of the crime. The High Court, rejected this contention and dismissed the petition.

In appeal, the bench noted that in Thota Venkateswarlu v. State of A.P. Tr. Principal Secretary 2011 (9) SCC 527 it was held that previous sanction of the Central Government under Section 188 Cr.P.C. for offences committed by a citizen of India outside the country is not required at the stage of cognizance and therefore it is not inclined to interfere with the order passed by the High Court. While dismissing the SLP, the court clarified that the accused is at liberty to raise the ground pertaining to sanction before the commencement of the trial.

16. If Last Seen Theory Is Established, Accused Should Explain Circumstances In Which He Departed Company Of Deceased

[Case: Surajdeo Mahto v. State of Bihar; Citation: LL 2021 SC 351]

Once the fact of last seen is established, an adverse inference can be drawn against the accused if he fails to explain the circumstances in which he departed the company of the deceased, the Supreme Court has reiterated. The bench comprising CJI NV Ramana, Justices Surya Kant and Aniruddha Bose was disposing a criminal appeal arising out of a murder case of the year 1987. The Trial Court convicted the accused duo under Section 302 read with section 34 of the Indian Penal Code and sentenced them to life imprisonment. The Patna High Court later affirmed the conviction in the year 2010.

In appeal, the Court noted that the conviction of the accused is based on circumstantial evidence regarding (i) Last seen theory; (ii) Motive & (iii) false information provided and subsequent conduct of the accused. The accused's main contention in the appeal was that the conviction, which is merely on the basis of 'last seen theory', is unsustainable. "We may hasten to clarify that the fact of last seen should not be weighed in isolation or be segregated from the other evidence led by the prosecution. The last seen theory should rather be applied taking into account the case of the prosecution in its entirety. Hence, the Courts have to not only consider the factum of last seen, but also have to keep in mind the circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the accused.", the court further added. 

17. 'Harsh': Supreme Court Reduces Condition Imposed On Public Interest Litigant To Deposit 1% Of Project Cost As Security

[Case: Arvind Tukaram Shinde v. State of Maharashtra & Ors; Citation: LL 2021 SC 352]

The Supreme Court has set aside an order of the Bombay High Court, requiring a PIL-petitioner to deposit 1% cost of a sewage treatment plan project, estimated to be around Rs. 390 crore, before hearing his case. Instead, the Court directed the Petitioner to deposit Rs. 10 lakh as security to proceed in the matter. "We understand that the impugned order of the High Court was intended to subserve the interest of ensuring that a public project should not be stalled by filing of frivolous PILs. However, it is equally necessary to ensure that a balance is struck to preclude the possibility of denial of access to Justice," a Division Bench of Justices DY Chandrachud and MR Shah observed. 

The Bombay High Court had asked the petitioner to deposit 1% of the project cost by July 5, 2021. Aggrieved by the same, the Petitioner had moved the Top Court with a grievance that it would place an unbearable burden on him. The impugned order was passed in exercise of powers under Rule 7A of the Bombay High Court PIL Rules 2010. It provides that the Court may, in its discretion, direct the petitioner to deposit a sum, by way of security deposit, in the Court, which shall be subject to final or interim order of the Court and If the Court finds that petition is vexatious, motivated or not pro-bono-publico, then the amount so deposited shall be forfeited.  The Top Court opined that the purpose of incorporation of such a provision is to ensure that public projects are not dislocated by institution of motivated PILs. However, a balance has to be maintained to ensure that access to justice is not denied. "Imposition of 1% project cost is rather harsh," the Bench remarked while setting aside the impugned order. 

18. "A Quarter Of A Century Has Passed": Supreme Court Directs Expeditious Trial Of A Partition Suit Pending For 26 Years

[Case: Jimmy Dora Sukhia v. Roshani Farukh Chinoy; Citation: LL 2021 SC 353]

"A quarter of a century has passed in determining whether the licenser is entitled to seek occupation of the portion occupied by her son!", the Supreme Court observed while directing a Court in Pune to expedite the trial of a partition suit which is pending for 26 years. A suit was filed before the Small Causes Court, Pune in the year 1995 by a mother against her son seeking a decree of possession. The same year, the son also filed a suit for partition of properties. After the death of the mother, her son in law claimed that she had executed an unregistered Will and that he is the legatee. Later, he was substituted as the plaintiff in 2007 in the suit before the Small Causes Court. It is this dispute surrounding the will that has reached the Supreme Court in the year 2014. 

"We can hardly envisage a situation where for 26 years, a suit is pending at the first stage, and we have to decide the appeal and the second appeals which would arise thereafter.", the bench comprising Justices Sanjay Kishan Kaul and Hemant Gupta observed. "We also consider it appropriate to direct the Civil Judge, Senior Division, Pune to expedite the trial of suit No.450 of 1995. We can hardly envisage a situation where for 26 years, a suit is pending at the first stage, and we have to decide the appeal and the second appeals which would arise thereafter. The Wills are stated to have been filed in those proceedings and thus the final determination of the validity of the Wills would be in those proceedings. Needless to say that the parties will cooperate for an early trial to the suit and the trial court will endeavor to give a quietus to the issues before it preferably in a period of one year from date of communication of this order.", the Court further observed in the order.

19. Order XLI Rule 22 CPC- Cross Objection Not Necessary To Challenge Adverse Findings

[Case: Saurav Jain v. A. B. P. Design; Citation: LL 2021 SC 354]

The Supreme Court has observed that a party in whose favour a court has decreed the suit can challenge an adverse finding before the appellate court without a cross objection. "It is not necessary that a challenge to the adverse findings of the lower court needs to be made in the form of a memorandum of cross-objection", the bench comprising Justices DY Chandrachud and MR Shah observed. The Court also observed that it can entertain new grounds raised for the first time in an appeal under Article 136 of the Constitution if it involves a question of law which does not require adducing additional evidence. In this case, the Trial Court dismissed a suit though it rejected the defendant's objection regarding lack of jurisdiction of the Trial Court. The High Court allowed the appeal by the plaintiff and reversed the judgment of the Trial Court. It was held that the auction conducted by Moradabad Development Authority in respect of the land in dispute is null and void. The question of jurisdiction was not considered by the High Court because he did not file a cross-objection against this finding of the Trial Court on the exercise of its jurisdiction.

"Though the appellant did not assail the finding of the Trial Court on the issue of jurisdiction before the High Court under Order XLI Rule 22 CPC either by filing a memorandum of cross-objection or otherwise, he is not precluded from raising the argument before this Court. This Court in view of its plenary jurisdiction under Article 136 of the Constitution read with its power to do complete justice under Article 142, can entertain new grounds raised for the first time if it involves a question of law which does not require adducing additional evidence, specifically one concerning jurisdiction of the court which goes to the root of the matter.", the court said while disposing the appeal.

20. Magistrate Not Required To Record Statement Of Public Servant Who Filed Complaint Before Summoning Accused

[Case: Cheminova India Limited v. State of Punjab; Citation: LL 2021 SC 355]

The Supreme Court has observed that a Magistrate is not required to record statement of a public servant who filed the complaint in discharge of his official duty before issuing summons to the accused resides outside the territorial jurisdiction. In this case, the Inspecting Officer filed complaint before the Judicial Magistrate, against a company, its managing director and others alleging offence of 'misbranding' under Sections 3(k)(i), 17, 18, 33, 29 of the Insecticides Act. One of the contentions raised by the appellant-accused was that the the Magistrate has taken cognizance without conducting inquiry and ordering investigation and thus not followed the procedure prescribed under Section 202 of the Code of Criminal Procedure.

"With regard to the procedure contemplated under Section 202 of the Code of Criminal Procedure, the same is to be viewed, keeping in mind that the complainant is a public servant who has filed the complaint in discharge of his official duty. The legislature in its wisdom has itself placed the public servant on a different pedestal, as would be evident from a perusal of proviso to Section 200 of the Code of Criminal Procedure. Object of holding an inquiry / investigation before taking cognizance, in cases where accused resides outside the territorial jurisdiction of such Magistrate, is to ensure that innocents are not harassed unnecessarily. By virtue of proviso to Section 200 of Code of Criminal Procedure, the Magistrate, while taking cognizance, need not record statement of such public servant, who has filed the complaint in discharge of his official duty. Further, by virtue of Section 293 of Code of Criminal Procedure, report of the Government Scientific Expert is, per se, admissible in evidence. The Code of Criminal Procedure itself provides for exemption from examination of such witnesses, when the complaint is filed by a public servant.", the court observed.

21. Not Much Scope For Considering 'Territorial Jurisdiction' Issue In A Transfer Petition U/s 25 CPC

[Case: Naivedya Associates v. Kriti Nutrients Ltd; Citation: LL 2021 SC 356]

The Supreme Court has observed that there is not much scope of going into the question of 'territorial jurisdiction' of a court in a Transfer Petition under Section 25 of the Code of Civil Procedure. This point is required to be urged before the Court in which the suit is pending, Justice Aniruddha Bose observed while dismissing a transfer petition. In this case, the petitioner is a defendant in a suit instituted in the Court of District Judge, Shahdara, Karkardooma Court, New Delhi alleging infringement of trade mark and copyright. In the transfer petition filed before the Apex Court, his only contention was that both the parties hail from the State of Madhya Pradesh and no cause of action has arisen within the jurisdiction of the District Court of Shahdara.

"This is the only point urged before me at the time of hearing. In these circumstances, I do not think there is much scope of going into the question of as to whether the Court in which the suit is instituted has territorial jurisdiction to try and determine the suit or not in a petition for transfer of a suit invoking Section 25 of the Code of Civil Procedure. This point is required to be urged before the Court in which the suit is pending. I accordingly decline the plea of the petitioner for transfer of the said suit.", the court observed.

22. Emergency Arbitration Award Enforceable In Indian Law : Supreme Court Rules In Favour Of Amazon In Case Against Future Retail

[Case: Amazon.com NV Investment Holdings LLC v. Future Retail Limited; Citation: LL 2021 SC 357]

The Supreme Court has ruled in favour of e-commerce giant Amazon in its dispute with Future Retail Limited(FRL) over the latter's merger deal with Reliance group. The top court held that that Emergency Award passed by Singapore arbitrator stalling FRL-Reliance deal is enforceable in Indian law. "It is wholly incorrect to say that Section 17(1) of the Act would exclude an Emergency Arbitrator's orders", the Court said in the judgment. A Bench comprising Justices RF Nariman and BR Gavai opined,  "We declare that full party autonomy is given by the Arbitration Act to have a dispute decided in accordance with institutional rules which can include Emergency Arbitrators delivering interim orders, described as "awards". Such orders are an important step in aid of decongesting the civil courts and affording expeditious interim relief to the parties. Such orders are referable to and are made under Section 17(1) of the Arbitration Act."

This means that the Supreme Court has approved the enforcement of the the Singapore Emergency Arbitrator (EA) award, passed at the instance of Amazon, restraining the Rs 24,731 crore amalgamation deal between Future Retail and Reliance Industries Group(Mukesh Dirubhai Ambani Group). Also, the top court has upheld the order of the single bench of the Delhi High Court which had ruled in favour of the enforcement of the Emergency Award and has held that single judge's order was not appealable to the division bench of the High Court under Section 37(2) of the Arbitration Act.

23. Mens Rea As Intent Not Required In Medical Negligence Cases

[Case: Prabhat Kumar Singh v. State of Bihar; Citation: LL 2021 SC 358]

The Supreme Court has observed that mens rea as intent is not required in a case of medical negligence. The bench of Justices AM Khanwilkar and Sanjiv Khanna observed that before summoning the accused in a criminal medical negligence complaint, the complainant has to lead medical evidence or examine a professional Doctor by the complainant in support of his case made out in the complaint. In this case, the complainant filed a medical negligence complaint under Section 304, 316/34 of the Indian Penal Code. The Magistrate issued summons to the accused. Challenging the summons order, the accused approached the High Court which then quashed it on the ground that there was no evidence regarding mens rea, to show malicious or bad intent.

In appeal, the bench observed that this view of the High Court is erroneous and accordingly opined, "for, when it is a case of medical negligence, it need not be because of mens rea as intent. Sans mens rea in the above sense also it would still constitute offence of medical negligence." 

24. Motor Accident Compensation: Pranay Sethi Judgment Doesn't Limit Operation Of Statute Providing Greater Benefits

[Case: New India Assurance Co. Ltd. v. Urmila Shukla; Citation: LL 2021 SC 359]

The Supreme Court has observed that the judgment in Pranay Sethi does not limit operation of a statutory provision granting greater benefits in the matter of Motor Accident Compensation. "If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid", the bench of Justices Uday Umesh Lalit and Ajay Rastogi observed. The Court dismissed an Insurance Company's appeal challenging the award by Motor Accidents Claim Tribunal, Allahabad of Rs.24,43,432/- was awarded with 7% interest, while considering the claim in respect of an accident which resulted in the death of one Jairam Shukla. The Allahabad High Court, had dismissed the First appeal earlier.

"If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay Sethi cannot 7 be taken to have limited the operation of such statutory provision specially when the validity of the Rules was not put under any challenge. The prescription of 15% in cases where the deceased was in the age bracket of 50-60 years as stated in Pranay Sethi cannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it was only in the form of an indication. If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid.", the court said while rejecting Insurance Company's contention.

25. Kirpan' Part Of Religious Belief ; Fact That It Can Be Used As Weapon Does Not Ipso Facto Make It A Weapon Of Offence

[Case: Om Prakash Singh v. State Of Punjab; Citation: LL 2021 SC 360]

"The fact that kirpan carried by members of a specific community as part of religious belief can also be used as a weapon of offence, does not ipso facto make it a weapon of offence", the Supreme Court has observed while acquitting an accused of murder charge. The case arise out of an incident happened in the year 1999. The appellant Om Prakash Singh and a co- accused were fighting amongst themselves while playing cricket and the deceased tried to intervene to pacify them. According to prosecution, the same night the deceased was assaulted with a kirpan allegedly by the first accused while the appellant held the deceased. The first accused was convicted under Section 302 Indian Penal Code while the appellant was convicted under Sections 302,34, IPC.

Referring to evidence on record, the bench observed that there is no evidence that the appellant was aware that the co-accused was a carrying a kirpan and intended to use it for assault. "It has rightly been urged on behalf of the appellant, that a kirpan is normally carried on person by members of a specific community as part of religious belief. The fact that it can also be used as a weapon of offence, does not ipso facto make it a weapon of offence", the bench comprising Justices Navin Sinha and R. Subhash Reddy observed and accordingly held that the conviction of the appellant under Section 302/34 IPC is not sustainable because existence of a common intention to kill the deceased has not been established.

26. Condition Of Pre-deposit Of Fine Amount Cannot Be Imposed To Hear Revision Petition Filed By Convict

[Case: R. Kalai Selvi v. Bheemappa; Citation: LL 2021 SC 361]

The Supreme Court has observed that deposit of fine amount cannot be made a condition precedent for hearing revision petition under Section 397 of the Criminal Procedure Code.In this case, the accused was convicted for the offence under Section 138 of the Negotiable Instruments Act, was sentenced to fine in the sum of Rs.6,00,000/-. It was also stipulated that the stipulation that in the event of default in payment of fine, she would undergo simple imprisonment for six months. An amount of Rs.5,90,000/- was directed to be paid to the complainant as compensation in terms of Section 357 Cr.P.C. and the balance amount was to be remitted to the State.

The High Court, while considering the Revision Petition filed by the accused, observed that, unless the fine amount was deposited, the accused would not be entitled to press into service the hearing of criminal revision petition. "We are clearly of the view that the High Court could not have made the deposit of fine amount a condition precedent for the purpose of hearing the revision petition. As to what order is to be passed ultimately in the revision petition is a matter entirely different and that would depend on the examination of the matter in terms of the requirements of revisional jurisdiction but, in any case, depositing of fine amount could not have been made a condition precedent for the purpose of even hearing of the revision petition so filed by the appellant.", the bench said agreeing with the accused-appellant contention that the High Court was not justified in imposing a condition of pre-deposit of the fine amount. 

27. 'Illegal Selection Process': Supreme Court Directs Kerala University To Appoint Candidate Who Was Denied Lecturer Post 14 Years Ago

[Case: TV Bindu v. University of Kerala; Citation: LL 2021 SC 362]

The Supreme Court has directed Kerala University to appoint a candidate who was illegally denied the post of Lecturer in Department Of Education in the selection process held 14 years ago. The bench of Justices KM Joseph and S. Ravindra Bhat clarified that Bindu TV, the candidate will not be entitled to arrears of salary. Instead she will be entitled to notional fixation and fitment in her grade from the date of such appointment as Assistant Professor with all consequential annual increments etc., and continuity of service on such basis, it said.

The matter pertains to a selection process initiated in the year 2003 for the post of Lecturer in the Department of Education in Kerala University. There were two vacancies in the open category to which three candidates including Bindu TV applied. The Rank List was made and Bindu TV was placed at third position. The other two got selected in the year 2007 while Bindu did not get. Aggrieved, she filed a writ petition before the Kerala High Court in the year 2010. The single bench allowed her writ petition and directed the University to appoint her after it found favour with her contention that she was not granted the maximum marks which she would have secured for the articles which she had published in the journal by the name 'Experiments in Education' The Division Bench allowed the writ appeal and set aside the single bench direction.  "We are of the view that the Division Bench has erred in not finding that the documents would clearly show that the journal 'Experiments in Education' was included as approved after the process was undergone at the hands of the concerned bodies of the University, viz., the Board of Studies, Faculty of Education and finally, the Academic Council.", the bench observed. 

28. Willful Breach Of Undertaking Given To Court Is Contempt

[Case: Suman Chadha v. Central Bank of India; Citation: LL 2021 SC 363]

The Supreme Court has observed that the wilful breach of the undertaking given to the Court can amount to Contempt under Section 2(b) of the Contempt of Courts Act. An undertaking given by a party should be seen in the context in which it was made and (i) the benefits that accrued to the undertaking party; and (ii) the detriment/injury suffered by the counter party, the bench comprising Justices Indira Banerjee and V. Ramasubramanian observed. In this case, the Delhi High Court had held a husband and wife guilty of committing contempt of Court and sentenced them to simple imprisonment for three months along with a fine of Rs.2000. The proceedings were initiated by the Court in view of breach of an undertaking given by them to Court,while obtaining conditional order of stay.

"It is true that this Court has held in a series of decisions that the wilful breach of the undertaking given to the Court amounts to contempt of Court under Section 2(b) of the Act. But the Court has always seen (i) the nature of the undertaking made; (ii) the benefit if any, reaped by the party giving the undertaking; and (iii) whether the filing of the undertaking was with a view to play fraud upon the court or to hoodwink the opposite party", the Bench further remarked. 

29. Res Judicata Is Not A Ground To Reject A Plaint Under Order VII Rule 11(d) CPC

[Case: Srihari Hanumandas Totala v. Hemant Vithal Kamat; Citation: LL 2021 SC 364]

The Supreme Court has observed that the Res Judicata cannot be a ground for rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure. "Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the 'previous suit', such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.", the bench comprising Justices DY Chandrachud and MR Shah observed. In the suit filed by the plaintiff, the defendant filed an application for rejection of plaint under Order 7 Rule 11 of the CPC on the ground that the suit was barred by res judicata as the grounds relating to the validity of the sale deed and the issue of title were raised in the previous suit. The Trial Court, while rejecting this application held that the issue as to whether the suit is barred by res judicata cannot be decided in an Order 7 Rule 11 application but has to be decided in the suit. The High Court dismissed the Revision Petition filed against the order of the Trial Court.

"Hence, in order to decide whether the suit is barred by any law, it is the statement in the plaint which will have to be construed. The Court while deciding such an application must have due regard only to the statements in the plaint. Whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case", the Bench further added. 

30. Pendency A Direct Result Of Centre's 'Recalcitrant Attitude' In Not Appointing HC Judges For Years After Collegium Clearances

[Case: M/s Indian Solar Manufacturers Association v. Solar Power Developers Association; Citation: LL 2021 SC 365]

The Supreme Court has once again expressed exasperation at the delay on the part of the Union Government in filling up the mounting vacancies of judges in High Courts across the country. In an order passed on August 9, the Top Court had observed that the "recalcitrant attitude" of the Government in not appointing High Court judges even years after the Supreme Court collegium has cleared the recommendations is causing delay in adjudication of cases. 

A division bench comprising Justices Sanjay Kishan Kaul and Hrishikesh Roy made these serious observations while hearing a special leave petition filed against an interlocutory order passed by the Delhi High Court in a matter related to anti-dumping proceedings. From the proceedings, the Supreme Court bench noted that the High Court is not in a position to give an early hearing for the case, as it is working at half its strength. "We are facing the problem raised in these petitions on account of the recalcitrant attitude of the Government in not appointing High Court Judges for years together even where the recommendations have been cleared by the Collegium", the bench stated at the very beginning of the order. "This is the direct result of there being inadequacies of the number of High Court Judges including in the capital of the Country where the Delhi High Court is located", the Court noted agonizingly.

31. Relatives Not Dependent On Claimant Will Constitute A Separate Family Unit For Purposes Of Compensation & Rehabilitation

[Case: Eastern Coalfields Limited v. Anadinath Banerjee; Citation: LL 2021 SC 366]

The Supreme Court has observed that the relatives who are not dependent on the claimant will constitute a separate family unit for the purposes of compensation and rehabilitation. In this case, the issue was whether one Anadinath Banerjee is entitled to employment by Eastern Coalfields Limited in lieu of the acquisition of lands, on the strength of a tripartite agreement. According to the said agreement, a claimant would be eligible for the grant of employment if the land acquired for the purposes of the project is at least 2.0 acres. The High Court allowed his Writ petition after it found that he was in possession of land in excess of the minimum required (2 acres) and was, therefore, entitled to employment.

"The principle which can be deduced is that relatives who are not dependent on the claimant will constitute a separate family unit for the purposes of compensation and rehabilitation. The self-serving affidavits executed by the father, brother and nephews of the respondent cannot be taken as the basis of determining whether the holding of the respondent was in excess of the threshold of two acres. Such affidavits create no interest in the land particularly when the persons who executed them do not fall within the ambit of the phrase 'family'", the Bench comprising Justices DY Chandrachud and MR Shah observed while allowing the appeal. 

32. Political Parties Must Publish Criminal Antecedents Of Candidates Within 48 Hours Of Their Selection: Supreme Court Modifies Earlier Direction

[Case: Brajesh Singh v. Sunil Arora; Citation: LL 2021 SC 367]

With the objective of decriminalization of politics, the Supreme Court on Tuesday directed that the political parties must publish the criminal antecedents, in any, of the candidates within 48 hours of their selection. A bench comprising Justices RF Nariman and BR Gavai modified the direction in its February 13, 2020 judgment in that regard. The court has also directed the Election Commission of India to create a dedicated mobile application containing information published by candidates regarding their criminal antecedents, so that at one stroke, each voter gets such information on his/her mobile phone.

"Political parties are to publish information regarding criminal antecedents of candidates on the homepage of their websites, thus making it easier for the voter to get to the information that has to be supplied. It will also become necessary now to have on the homepage a caption which states "candidates with criminal antecedents. The ECI is directed to create a dedicated mobile application containing information published by candidates regarding their criminal antecedents, so that at one stroke, each voter gets such information on his/her mobile phone", the Bench further directed. 

Also Read: SC Directs Political Parties To Publish Criminal Antecedents Of Candidates In LS & Assembly Polls

Also Read: Politicians With Criminal Antecedents Cannot Be Permitted To Be Law-Makers; But Our Hands Are Tied

Also Read: Supreme Court Imposes Fine On 8 Political Parties For Violating Directions To Publish Criminal Antecedents Of Candidates In Bihar Polls 

33. NCLT/NCLAT Has No Residual Equity Jurisdiction While Dealing With Resolution Plan Approved By CoC

[Case: Pratap Technocrats (P) Ltd. v. Monitoring Committee of Reliance Infratel Limited; Citation: LL 2021 SC 368]

The Supreme Court has observed that there is no residual equity based jurisdiction in the Adjudicating Authority or the Appellate Authority while dealing with the resolution plan approved by the Committee of Creditors. The bench of Justices DY Chandrachud and MR Shah reiterated that these authorities can not enter into the commercial wisdom underlying the approval granted by the CoC to the resolution plan.

"To argue that a residuary jurisdiction must be exercised to alter the delicate economic coordination that is envisaged by the statute would do violence on its purpose and would be an impermissible exercise of the Adjudicating Authority's power of judicial review.", the bench observed, adding that the jurisdiction of the authorities are confined by the provisions of Section 31(1) to determining whether the requirements of Section 30(2) have been fulfilled in the plan as approved by the CoC. The bench observed thus while upholding orders passed by National Company Law Appellate Authority and National Company Law Tribunal which approved the resolution plan formulated in the course of the insolvency resolution process of the Corporate Debtor.

34. 'Perversity' Or 'Patent Illegality' Not Grounds To Refuse Enforcement Of Foreign Arbitration Award

[Case: Gemini Bay Transcription Pvt. Ltd. v. Integrated Sales Service Ltd; Citation: LL 2021 SC 369]

The Supreme Court has observed that perversity of an award is not a ground to refuse enforcement of a foreign award under Section 48 of the Arbitration and Conciliation Act, after 2015 amendment. The Court held that the ground of "patent illegality" is only available to set aside domestic arbitration awards made under Part 1 of the Arbitration and Conciliation Act and will not apply to international commercial awards. "The ground of "patent illegality appearing on the face of the award" is an independent ground of challenge which applies only to awards made under Part I which do not involve international commercial arbitrations.", the bench comprising Justices RF Nariman and BR Gavai observed. The court made these observations in an appeal filed by Gemini Bay Transcription Pvt. Ltd. against a Bombay High Court judgment which held that the foreign award is enforceable against them, even though they were non signatories to the Arbitration Agreement.

35. Application For Initiating CIRP Has To Be Rejected If A Dispute Truly Exists In Fact And Is Not Spurious, Hypothetical Or Illusory

[Case: Kay Bouvet Engineering Ltd. v. Overseas Infrastructure Alliance (India) Private Limited; Citation: LL 2021 SC 370]

The Supreme Court has observed that adjudicating authority has to reject an application seeking initiation of Corporate Insolvency Resolution Process under Section 9 of Insolvency and Bankruptcy Code, if a dispute truly exists in fact and is not spurious, hypothetical or illusory. The bench of Justices RF Nariman and BR Gavai observed that, at this stage, the authority is not required to be satisfied as to whether the defence is likely to succeed or not and it cannot go into the merits of the dispute. The court allowed the appeal against the National Company Law Appellate Tribunal order which had set aside the National Company Law Tribunal order rejecting the application filed by Overseas Infrastructure Alliance (India) Private Limited seeking initiation of CIRP against Kay Bouvet Engineering Ltd.

"It is thus clear that once the "Operational Creditor" has filed an application which is otherwise complete, the adjudicating authority has to reject the application under Section 9(5)(ii)(d) of IBC, if a notice has been received by "Operational Creditor" or if there is a record of dispute in the information utility. What is required is that the notice by the "Corporate Debtor" must bring to the notice of "Operational Creditor" the existence of a dispute or the fact that a suit or arbitration proceedings relating to a dispute is pending between the parties. All that the adjudicating authority is required to see at this stage is, whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is a mere bluster. It has been held that however, at this stage, the Court is not required to be satisfied as to whether the defence is likely to succeed or not. The Court also cannot go into the merits of the dispute except to the extent indicated hereinabove. It has been held that so long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has no other option but to reject the application", the Bench further elucidated. 

36. Section 106 Evidence Act- 'Failure To Explain' Can Only Be An Additional Link To Complete Chain Of Circumstance

[Case: Parubai v. State of Maharashtra; Citation: LL 2021 SC 371]

The Supreme Court has observed that the failure of the accused to explain can only be held as an additional link to complete the chain of circumstance. If the other circumstances in the chain are not established, such failure to explain cannot be the sole basis to convict the accused, the bench comprising Justices Hemant Gupta and AS Bopanna observed. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In this case the High Court held the accused guilty of pouring kerosene around the deceased and her children and setting them on fire since he had failed to explain the reason for eruption of fire in the house.

"As held in Sharad Birdhichand Sarda (supra) the failure to explain can only be held as an additional link to complete the chain of circumstance. In the instant case, since the other circumstances in the chain are not established, the same cannot be held against the appellant. On the other hand, the case itself is that the fire had erupted at midnight when the appellant and others were sleeping and she come out shouting. The explanation for the cause of fire by the appellant would have arisen only if there was any other evidence to the effect that the appellant was already awake and was outside even before the fire erupted", the Bench observed while allowing the appeal. 

37. Right To Shelter Does Not Mean Right To Government Accommodation

[Case: Union of India v. Onkar Nath Dhar; Citation: LL 2021 SC 372]

The right to shelter does not mean right to government accommodation, the Supreme Court observed while setting aside a Punjab and Haryana High Court order allowing a retired Intelligence Bureau Officer to retain Government accommodation. The court observed that government accommodation is meant for serving officers and officials and not to the retirees as a benevolence and distribution of largesse. The bench of Justices Hemant Gupta and AS Bopanna added that compassion howsoever genuine does not give a right to a retired person from continuing to occupy a government accommodation. The court also directed the Centre to submit a report of the action taken against the retired Government officials who are in Government accommodation post their retirement by virtue of the orders of the High Courts on or before 15.11.2021.

"No exception was carved out even in respect of the persons who held Constitutional posts at one point of time. It was held that the Government accommodation is only meant for in-service officers and not for the retirees or those who have demitted office. Therefore, the view of the learned Delhi High Court and that of the Punjab & Haryana High Court is erroneous on the basis of compassion showed to displaced persons on account of terrorist activities in the State. The compassion could be shown for accommodating the displaced persons for one or two months but to allow them to retain the Government accommodation already allotted or to allot an alternative accommodation that too with a nominal licence fee defeats the very purpose of the Government accommodation which is meant for serving officers. The compassion howsoever genuine does not give a right to a retired person from continuing to occupy a government accommodation", the Bench further added. 

38. A 'Clarificatory' Provision In Tax Laws Cannot Impose A New Condition Retrospectively

[Case: M.M. Aqua Technologies Ltd v. Commissioner of Income Tax; Citation: LL 2021 SC 373]

A retrospective provision in a tax act which is "for the removal of doubts" cannot be presumed to be retrospective, even where such language is used, if it alters or changes the law as it earlier stood, the Supreme Court has observed while holding that Explanation 3C to Section 43B(d) of the Income Tax Act is 'clarificatory' and does not add a new condition retrospectively. The bench of Justices RF Nariman and BR Gavai observed that Explanation 3C was introduced to curb the misuse of the provisions of Section 43B by not actually paying interest, but converting such interest into a fresh loan. 

"As has been seen by us hereinabove, particularly with regard to the Circular explaining Explanation 3C, at the heart of the introduction of Explanation 3C is misuse of the provisions of Section 43B by not actually paying interest, but converting such interest into a fresh loan. On the facts found in the present case, the issue of debentures by the assessee was, under a rehabilitation plan, to extinguish the liability of interest altogether. No misuse of the provision of Section 43B was found as a matter of fact by either the CIT or the ITAT. Explanation 3C, which was meant to plug a loophole, cannot therefore be brought to the aid of Revenue on the facts of this case", the Bench further added. 

39. There Cannot Be Repeated Test Identification Parades Till Accused Is Identified

[Case: Umesh Chandra v. State of Uttarakhand; Citation: LL 2021 SC 374]

The Supreme Court observed that there cannot be repeated Test Identification Parades till such time that the prosecution is successful in obtaining identification of the accused. The bench of Justices Navin Sinha and R. Subhash Reddy observed that mere identification in the test identification parade cannot form the substantive basis for conviction unless there are other facts and circumstances corroborating the identification. It reiterated that a test identification parade under Section 9 of the Evidence Act is not substantive evidence in a criminal prosecution but is only corroborative evidence. In this case, the accused were convicted by the Trial Court on the basis of them being identified in a test identification parade (TIP). In appeal before the Supreme Court, they contended that the conviction based on the TIP is unsustainable as no TIP has been proved to have been held in accordance with law.

"There cannot be repeated TIPs till such time that the prosecution is successful in obtaining identification of the accused. We find it extremely disturbing that both the Trial Court and the High Court did not go into this aspect at all to satisfy themselves if any TIP had been proved to have been held at all and that too in accordance with the law.", the bench observed while acquitting the accused.

40. Delay In Pronouncing Judgment By Itself Is Not A Ground For Setting It Aside

[Case: Sree Srimanniranjana Pranavaswarupi Sree Shivananda Shivayogirajendra Mahaswamigalu v. CR Shivananda; Citation: LL 2021 SC 375]

The Supreme Court has observed that a delay in pronouncing the judgment by itself is not a ground of setting it aside.  In this case, the appellant challenged the High Court judgment on the ground that it delivered the judgment after one and a half year of the judgment being reserved. The appellant's counsel relied on a judgment viz. Santosh Hazari v. Purushottam Tiwari (Dead) (2001) 3 SCC 179 in this regard.

"We have asked learned counsel for the appellant time and again, as to whether the judgment can be set aside only on the ground that it is delivered after reserving the order after some delay but learned counsel was insistent on the fact that the judgment cannot be sustained on this ground...A perusal of the judgment is not even remotely suggesting that the delay in pronouncing the judgment by itself will be a ground of setting aside the same. We find that the objection raised is frivolous and waste of time of the Court", the bench comprising Justices Hemant Gupta and AS Bopanna observed and accordingly imposed a cost of Rupees Fifty Thousand on the petitioner.

41. Madhya Pradesh Higher Judicial Services Rules 2017 Has No Retrospective Operation

[Case: Anand Kumar Tiwari v. High Court of Madhya Pradesh; Citation: LL 2021 SC 376]

The Supreme Court has observed that Madhya Pradesh Higher Judicial Services (Recruitment and Conditions of Service) Rules, 2017, has no retrospective operation. The roster shall be prepared and maintained only after the commencement of operation of the Rules, the bench of Justices L. Nageswara Rao and Aniruddha Bose observed. After the introduction of the 2017 Rules, seniority inter-se direct recruits and promotees shall be determined on the basis of Roster, the court added. The bench further observed that the delay in the decision taken by the High Court to bring the seniority rule in accord with the directions given by this Court in All India Judges' Association (supra) on the ground of pendency of SLP before this Court is not justified.

"However, the Petitioners are not entitled to the relief of the 2017 Rules being given retrospective effect. According to Rule 11 (1) of the 2017 Rules, the relative seniority of members of service working on the date of commencement of the Rules shall not be disturbed. The roster shall be prepared and maintained only after the commencement of operation of the Rules. The Petitioners cannot claim that their seniority has to be reworked on the basis of roster as directed by this Court in All India Judges' Association (supra) case", the court said while dismissing the writ petition.

42. 'SLP Cannot Lie Against Only A Review Order': Supreme Court Raps Petitioner For Approaching Court With Over 56 Years Delay

[Case: Anita Devi and Anr v. Sanjay Kumar and Ors; Citation: LL 2021 SC 377]

Emphasizing the fact that an SLP could not lie against only a review order, the Supreme Court today rapped the petitioner for approaching the Court by way of a review application with a delay of 56 years and 6 days.The Division Bench of Justice SK Kaul and Justice Hrishikesh Roy while hearing a plea against the order passed by the Patna High Court on March 29, 2019, remarked that, "We find the present proceeding filed before this Court as also before the High Court is an abuse of process of law and complete wastage of judicial time."

Relying on the Apex Court judgement in Municipal Corporation of India v. Yashwant Singh Negi, (2013) SCC online 308, the Court said that an SLP would not lie against only a review order and that there was no error apparent after 50 years for the Court to exercise the jurisdiction of review. Looking into the allegations that the petitioners were not apparently well to do, the top court while dismissing the plea imposed a cost of Rs 5000/-and directed the same to be deposited with the Supreme Court Advocates on Record Welfare Fund within four weeks.

43. Payment Of Gratuity Act - No Retrospective Effect For 2010 Amendment Enhancing Gratuity Upper Limit As Rs 10 Lakhs

[Case: Krishna Gopal Tiwary v. Union of India; Citation: LL 2021 SC 378]

The Supreme Court has observed that 2010 amendment of Payment of Gratuity Act 1972 is not retrospective. As per the 2010 amendment, the upper-limit of amount of gratuity payable as per Section 4 of the Payment of Gratuity Act 1972 was increased as Rupees 10 lakhs from Rupees 3.5 lakhs. The bench comprising Justices Hemant Gupta and AS Bopanna observed that the benefit of higher gratuity is one-time available to the employees only after the commencement of the Amending Act. Referring to the decision in State Government Pensioners' Association & Ors. v. State of Andhra Pradesh, the court noted that the payment of gratuity from a specified date of retirement was held to be not unconstitutional.

"The Gratuity Act contemplated rupees ten lakhs as the amount of gratuity only from 24.5.2010. Such gratuity is the amount payable only once. Thus, the cut-off date cannot be said to be illegal, it being one-time payment. Therefore, such amendment in the Gratuity Act cannot be treated to be retrospective. Therefore, the provisions of the statute cannot be said to be retrospective.", the Bench further added. 

44. Improper To Quash FIR U/s 482 CrPC When There Are Serious Triable Allegations In Complaint, Reiterates Supreme Court

[Case: Kaptan Singh v. State of Uttar Pradesh; Citation: LL 2021 SC 379]

The Supreme Court has observed that it is improper to quash criminal proceedings under Section 482 of Criminal Procedure Code when there are serious triable allegations in the complaint. Appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC, the Supreme Court reiterated while setting aside a High Court judgment. In this case, pursuant to direction of Magistrate under Section 156(3) CrPC, the police registered FIR against the accused under Sections 147, 148, 149, 406, 329 and 386 IPC. The complaint pertained to non-execution of a sale deed. The accused approached the High Court seeking quashing of FIR and entire criminal proceedings alleging that the same has been lodged only with a view to pressurize the accused handover the plot to the complainant. The High Court allowed the petition.

"If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial", the Bench of Justices DY Chandrachud and MR Shah opined while setting aside the High Court judgment.

45. Whether A Deed Is Of Absolute Transfer Or Mortgage By Conditional Sale? Intention Of Parties Determines

[Case: Bhimrao Ramchandra Khalate (Deceased) v. Nana dinkar Yadav (Tanpura); Citation: LL 2021 SC 381]

 The Supreme Court has observed that the intention of parties has to be looked into to consider whether a document is of absolute sale or mortgage by conditional sale. A Bench of Justices Hemant Gupta and AS Bopanna was interpreting Section 58 of the Transfer of Property Act which defines Mortgage by conditional sale. The proviso to this section states that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. 

In the instant case, the document executed between the parties had these clauses: (i) The plaintiff has borrowed a sum of Rs.3,000/- from the defendant for his household expenses in respect of the land which was in his possession. (ii) The possession of land was handed over to the defendant on the condition that the possession will be given back to him within one year from the date of conditional sale deed. (iii) The defendant is bound to retransfer the land to the plaintiff when he repays the amount of Rs.3,000/-. (iv) If the amount is not paid within the stipulated period, the conditional sale deed may be taken as a permanent one.

"The intention of the parties has to be seen when the document is executed. It is not in dispute that the condition of retransfer is a part of the same document (Ex. 68). Such is the condition inserted by an amendment in the year 1929 expressed by the proviso of Section 58(c) of the Act.... Therefore, a reading of the document would show that the document was executed for the reason that the plaintiff has borrowed a sum of Rs.3,000/- for his household expenses and the defendant is bound to retransfer the land if the amount is paid within one year. The advance of loan and return thereof are part of the same document which creates a relationship of debtor and creditor. Thus, it would be covered by proviso in Section 58(c) of the Act. " the Apex Court said while considering an appeal filed by the High Court which dismissed his suit for redemption of Mortgage.

46. Motor Accident Claim Petition Does Not Abate On Death Of Injured Claimant

[Case: Oriental Insurance Company Limited v. Kahlon @ Jasmail Singh Kahlon (deceased); Citation: LL 2021 SC 382]

The Supreme Court has observed that a motor accident claim petition does not abate even after the death of the injured claimant. A Bench comprising Justices Navin Sinha and R. Subhash Reddy ruled that the right to sue survive to his heirs and legal representatives in so far as loss to the estate is concerned. The Court added that the loss of estate would include expenditure on medicines, treatment, diet, attendant, Doctor's fee, etc. including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted the estate of the injured, subsequently deceased.

The High Court in this case had enhanced the compensation to Rs.37,81,234/­ . The court said that the compensation under the head pain and suffering being personal injuries is held to be unsustainable. Disallowing compensation awarded under this head, the bench reassessed total compensation as Rs.28,42,175/­-. 

47. He Fought A Long & Arduous Battle Against The Might Of The State': Supreme Court Rejects Centre's SLP Against A Mason

[Case: Union of India v. Vasudev; Citation: LL 2021 SC 383]

The Supreme Court has recently refused to interfere with an order of the Delhi High Court judgment in the matter of regularization of a mason. Vasudev was engaged as a Mason on hand receipt/muster roll basis in the Central Public Works Department, with effect from 4th February, 1985. As he was not granted the status of a regular employee, he approached Central Administrative Tribunal seeking regularisation. The CAT directed the authorities to consider his claim for regularisation from the date he had completed 240 days of continuous service on casual and work charge basis. Later, dismissing the challenge against this order, the High Court, directed his regularization, by its judgment dated 15 July 2010. In the SLP filed by the Centre, the bench comprising Justices DY Chandrachud and MR Shah observed that Vasudev had been pursuing his claim right from 1997 before the Tribunal and he was entitled to temporary status on the completion of 240 days' continuous service.

"Justice has been done to a mason who fought a long and arduous battle against the might of the State. The wider questions which are sought to be raised on behalf of the Union Government are kept open to be urged in an appropriate case. The ultimate direction which has been issued by the High Court is sustained on the individual facts as they pertain to the respondent before this Court.", the Court said while dismissing the SLP.

48. Criminal Appeal Cannot Be Dismissed Merely For Non-Representation Or Default Of Accused' Advocate

[Case: K. Muruganandam v. State; Citation: LL 2021 SC 384]

The Supreme Court has observed that a Court cannot dismiss the appeal filed by an accused merely because of non-representation or default of the advocate for the accused. If the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed with the hearing of the case only after appointing an amicus curiae, the bench of Justices AM Khanwilkar and Sanjiv Khanna stated. In this case, the Madras High Court dismissed the accused's criminal appeal for non prosecution on the ground that there was no representation on behalf of the appellant either in person or through the counsel on record.

"It is well settled that if the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed with the hearing of the case only after appointing an amicus curiae, but cannot dismiss the appeal merely because of non-representation or default of the advocate for the accused", the bench said while setting aside the High Court order.

49. Process Of Determination Of Motor Accident Compensation Cannot Be By A Continuing Mandamus, It Must Take Place At One Go

[Case: HDFC ERGO General Insurance Co. Ltd. v. Mukesh Kumar; Citation: LL 2021 SC 385]

The Supreme Court has observed that while determining compensation under the Motor Vehicle Act, a court cannot direct the continued maintenance by Insurance Company of a prosthetic limb for the injured claimant. The process of determination of such compensation cannot be by a continuing mandamus, in a colloquial sense, and the determination must take place at one go, the bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed. In this case, while allowing an appeal filed by a claimant, the High Court directed that he shall be supplied a prosthetic limb of good quality and with a lifetime warranty. It was further directed that if any, repair or replacement has to be done, the same should be done by the Insurance Company and that it should inquire from the victim at least twice a year as to the working condition of the prosthetic limb with an email address and telephone number specified.

"In our view, the process of determination of such compensation cannot be by a continuing mandamus, in a colloquial sense, and the determination must take place at one go. The aforesaid principle is not even disagreed to or contested by the respondents but what is submitted is that there must be a provision made fixing a lump sum amount for maintenance/ replacement of the prosthetic limb, if necessary. We agree with the submission and in a larger canvas consider it appropriate to direct that in such kind of cases of providing facility of prosthetic limb, appropriate amount may be quantified towards such maintenance.", the bench observed.

50. Mere Over-ruling Of Principles By A Subsequent Judgment Will Not Dilute Binding Effect Of Decision On Inter-parties

[Case: Neelima Sreevastava v. State of Uttar Pradesh; Citation: LL 2021 SC 386]

Emphasizing the distinction between over-ruling a principle and reversal of the judgment, the Supreme Court observed that mere over-ruling of the principles by a subsequent judgment will not dilute the binding effect of the decision on inter-parties. "Mere over-ruling of the principles, on which the earlier judgment was passed, by a subsequent judgment of higher forum will not have the effect of uprooting the final adjudication between the parties and set it at naught.", the bench of Justices S. Abdul Nazeer and Krishna Murari ruled. 

In this case, the Allahabad High Court, vide judgment dated January 23, 2006, directed the State to consider regularization of appellant under the relevant Regularization Rules. This judgment was not challenged by the State. However, some years after the Supreme court delivered the judgment in Uma Devi, the state filed another writ petition in this regard. Though the single bench dismissed the writ petition, the Division bench allowed the special appeal filed by the State. Relying upon the observations made in Secretary, State of Karnataka & Ors. v. Umadevi & Ors the High Court held that since the initial appointment of the appellant was dehors the Rules and thus was illegal. 

In appeal, the Apex Court bench observed that in Uma Devi judgment, there is no direction that service matters that stand concluded inter partes, ought to be re-opened. Setting aside the Division Bench judgment, the court held that the appellant is held entitled to be regularized with all consequential benefits which may be extended to her within a period of three months from date of the order. 

51. A 'Tenant ­In ­Sufferance' Not Entitled To Any Protection Of Rent Act Against SARFAESI Proceedings

[Case: Hemaraj Ratnakar Salian v. HDFC Bank Ltd; Citation: LL 2021 SC 387]

The Supreme Court has observed that a tenant ­in ­sufferance is not entitled to any protection of the Rent Act against SARFAESI proceedings. A tenant whose term has expired but has not vacated is called a "tenant at sufferance.‟. In the absence of a registered instrument, if the tenant only relies upon an unregistered instrument or an oral agreement accompanied by delivery of possession, the tenant is not entitled to possession of the secured asset for more than the period prescribed under the provisions of the Transfer of Property Act, the bench of Justices S. Abdul Nazeer and Krishna Murari observed.

In this case, the appellant contended that he is a protected tenant under the provisions of the Maharashtra Rent Control Act 1999, and was residing in the premises of the borrower on the basis of an oral tenancy from 12.06.2012. The proceedings under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, were initiated against the borrowers. The intervention application of the appellant was dismissed by the Magistrate holding that there was no registered tenancy placed on record by him. "The appellant has pleaded tenancy from 12.06.2012 to 17.12.2018. This is not supported by any registered instrument. Further, even according to the appellant, he is a "tenant­ in­ sufferance", therefore, he is not entitled to any protection of the Rent Act. Secondly, even if the tenancy has been claimed to be renewed in terms of Section 13(13) of the SARFAESI Act, the Borrower would be required to seek consent of the secured creditor for transfer of the Secured Asset by way of sale, lease or otherwise, after issuance of the notice under Section 13(2) of the SARFAESI Act and, admittedly, no such consent has been sought by the Borrower in the present case", the court said while dismissing the appeal.

52. Genuineness Of Property Transaction Cannot Be Doubted Merely Because Thumb Impression Was Affixed Instead Of Signature

[Case: Lachhmi Narain Singh (D) v. Sarjug Singh (Dead); Citation: LL 2021 SC 388]

The Supreme Court has observed that genuineness of property transaction cannot be doubted merely because thumb impression was affixed instead of signature. The bench of Justices Sanjay Kishan Kaul and Krishna Murari also observed that every person has a unique thumb impression and thus 'forgery of thumb impressions is nearly impossible'. In this case, the Trial Court, in a probate case, found that the Will of one Rajendra Singh was revoked by him and the applicant was thus disentitled to get the Will probated. The High Court allowed the appeal of the probate applicant, finding that with the health condition of Rajendra Singh who suffered from paralysis before his death , it would not be possible for the testator to visit the Sub­ Registrar's Office, to cancel the Will.

"The key characteristic of thumb impression is that every person has a unique thumb impression. Forgery of thumb impressions is nearly impossible. Therefore, adverse conclusion should not be drawn for affixing thumb impression instead of signing documents of property transaction. Therefore, genuineness of the Cancellation deed cannot be doubted only due to the fact that same was not signed and Rajendra as a literate person, affixed his thumb impression. This is more so in this case since the testator's thumb impression was proved to be genuine by the expert", the bench observed while upholding the Trial Court order. 

53. Right Of Equity Of Redemption Of Mortgage Is Subsidiary To Right Of Ownership

[Case: Narayan Deorao Javle (Deceased) v. Krishna; Citation: LL 2021 SC 389]

The Supreme Court has observed that the right of equity of redemption is subsidiary to the right of ownership. A Bench comprising Justices Hemant Gupta and AS Bopanna observed, "The expression equity of redemption is a convenient maxim but an owner, who has stepped into the shoes of the mortgagor, after the purchase from the mortgagor but before filing a suit for foreclosure is entitled to redeem the property in terms of Section 60 of the Transfer of Property Act", the bench of Justices Hemant Gupta and AS Bopanna ruled. 

One of the issues raised in appeal was whether the plaintiff was a necessary party in a suit for foreclosure filed by the mortgagee after the purchase? "The equity of redemption is a right which is subsidiary to the right of ownership. Such right is not over and above the right of ownership purchased by the plaintiff. The expression equity of redemption is a convenient maxim but an owner, who has stepped into the shoes of the mortgagor, after the purchase from the mortgagor but before filing a suit for foreclosure is entitled to redeem the property in terms of Section 60 of the Act.", the court observed. The Court added that the decree passed at the back of the transferee mortgagor prior to the filing of the suit for foreclosure cannot be said to be a valid decree. 

54. Prior Knowledge Of Senior Secondary Level Biology Or Biological Science Is Essential For Admission To MBBS Course

[Case: Kaloji Narayana Rao University of Health Sciences v. Srikeerti Pingle; Citation: LL 2021 SC 390]

The Supreme Court has observed that prior knowledge - both theoretical and practical, of senior secondary level in biology or biological sciences is an essential qualification to get admission to MBBS Course. The bench comprising Justices L. Nageswara Rao and S. Ravindra Bhat observed that equivalence in qualification is not merely at the level of a 10+2 requirement, but MCI regulation requires equivalence in 'standard and scope' in an examination where the candidate is tested in Physics, Chemistry and Biology including practical testing in these subjects, along with English.

Kaloji Narayana Rao University of Health Sciences refused to grant admission to a candidate on the ground that there was no proof of her studying Biological Sciences in the qualifying examination. Allowing the writ petition filed by the candidate, Telangana High Court, after taking note of the equivalence certificate issued by the Telangana State Board of Intermediate Education, held that the refusal on the part of the University is illegal. The Apex Court observed that the equivalence in qualification is not merely at the level of a 10+2 requirement, i.e., that the candidate should have passed an examination equivalent to the intermediate science examination at an Indian University/ Board. Additional to this requirement, Regulation 4(2)(f) requires equivalence in 'standard and scope' in an examination where the candidate is tested in Physics, Chemistry and Biology including practical testing in these subjects, along with English, the bench observed.

55. Personal Liberty- Merely Because An Arrest Can Be Made Lawfully, It Does Not Mandate That Arrest Must Be Made

 [Case: Siddharth v. State of Uttar Pradesh; Citation: LL 2021 SC 391]

Merely because an arrest can be made because it is lawful does not mandate that arrest must be made, the Supreme Court has recently observed. The bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy observed that personal liberty is an important aspect of our constitutional mandate. In this case, the appellant along with 83 other private persons were sought to be roped in a FIR which was registered seven years ago. Before the court, he submitted that he had already joined the investigation and the chargesheet was stated to be ready to be filed. As the arrest memo was issued, he filed anticipatory bail application before the High Court which was dismissed and thus he approached the Apex Court in appeal.

Drawing a distinction between the existence of the power to arrest and the justification for exercise of it, the Court observed,  "If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.".  The Court further enumerated, "the occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made."

56. B.Ed In Biological Science Eligible Qualification For HSA(Natural Science) Post

[Case: Praveen Kumar CP v. Kerala Public Service Commission; Citation: LL 2021 SC 392]

The Supreme Court has held that candidates with B.ED degree in 'Biological Science' are eligible to apply to the post of High School Assistant (Natural Sciences) in government schools in Kerala.  A bench comprising Justice L Nageswara Rao and Justice Aniruddha Bose set aside the judgments of the Kerala High Court which held that B.Ed degree in 'Biological Science' was not a qualification for High School Assistant (Natural Sciences).

The Supreme Court noted that there is no provision in the Kerala Education Rules which makes B.Ed in a specified subject the qualifying criteria and accordingly observed, "the graduation requirement in concerned subject is there, but going by the said Clause, it postulates B.Ed. degree simplicitor as the eligibility criteria. No other Rule has been shown to us by the learned counsel for the State of Kerala or the Commission from which it can be inferred that there was requirement of a candidate for the subject posts to hold B.Ed. degree in the concerned subject". With regards to the Government Orders, the Court held that they "recognized an existing state of affairs so far as the nature of the degrees were concerned and did not create fresh value for the degrees which the appellants possessed".

57. Investigation Buried The Truth Fathom Deep: Supreme Court Acquits All Accused In A Murder Case

[Case: Madhav vs. State of Madhya Pradesh; Citation: LL 2021 SC 393]

Investigation in this case was carried out not with the intention of unearthing the truth, but for burying the same fathom deep, the Supreme Court has remarked while acquitting all the accused in a murder case of 2008. The case pertains to a murder of Pappu @ Nand Kishore in the year 2008. The prosecution case was that Sahodra had taken the deceased victim (who was her brother in law) to the Government Hospital and sent a false information to the Police as though the murderous assault on the victim was committed by two other persons by name Ruia and Kailash. Though the police filed FIR on the basis of information by Sahodra, later the case turned against Sahodra and her family. Thus Sahodra Bai, her husband Raju Yadav and her brother Madhav were convicted by the Trial Court for the murder of Pappu @ Nand Kishore (Raju's brother). The High court confirmed the conviction.

Overruling the conviction, the Bench comprising Justices Indira Banerjee and V. Ramasubramanian observed that the High Court proceeded on a wrong premise that there was scientific evidence to point to the guilt of the accused, merely because as pe FSL Report, the knife and lathis said to have been seized by the police, contained stains of human blood. "There cannot be any fixed formula that the prosecution has to prove, or need not prove that the blood groups match. But the judicial conscience of the Court should be satisfied both about the recovery and about the origin of the human blood.", it said. The Court further added, "we are clearly of the view that the investigation in this case was carried out by PW­14, not with the intention of unearthing the truth, but for burying the same fathom deep, for extraneous considerations and that it was designed to turn the informant and her family members as the accused and allow the real culprits named in the FIR to escape. Both the Sessions Court as well as the High Court have completely overlooked some of the important admissions made by PWs 9 and 14."

58. Consumer Complaint Against A Common Carrier Not Maintainable Without Serving It A Prior Notice

[Case: Associated Road Carriers v. Kamlender Kashyap; Citation: LL 2021 SC 394]

The Supreme Court has observed that a consumer complaint against a common carrier is not maintainable if prior notice under Section 6 of Carriers Act, 1865, is not served on it. Notice is required to be served prior to initiation of proceedings and not the proceedings itself, the bench of Justices Hemant Gupta and AS Bopanna held. In the instant case, the National Consumer Disputes Redressal Commission (NCDRC)  upheld the order of Himachal Pradesh Consumer Disputes Redressal Commission allowing a consumer complaint against the Associated Road Carriers. Before the Apex Court, in appeal, the Career contended that, in terms of Section 10 of Carriers Act, 1865, no prior notice was served upon it and thus the complaint before the Consumer Fora was not maintainable.

"The NCDRC has held that since the complaint was filed before the State Consumer Commission within a period of six months, it will amount to a notice upon the common carrier, therefore, the requirement of serving prior notice under Section 10 of the Carriers Act stands satisfied. We find that the proceedings initiated before the Consumer Fora without serving a notice under Section 4 10 of the Carriers Act was not maintainable. The requirement of Section 10 of the Carriers Act is serving of prior notice in writing of the loss or injury. Notice is required to be served prior to initiation of proceedings and not the proceedings itself.", the Court said.

59. 'No Sympathies To Students Who Entered Through Backdoor': SC Dismisses Plea Of MBBS Students Admitted Through Private Counselling

[Case: Abdul Ahad v. Union of India; Citation: LL 2021 SC 395]

No sympathies can be shown to students who have entered through backdoor, the Supreme Court observed while dismissing review petitions filed by some medical students. The bench of Justices L. Nageswara Rao, BR Gavai and Krishna Murari observed that the medical admissions conducted through the private counselling is illegal. Some medical students had approached the Apex Court challenging the discharge order issued by the Medical Council of India to the Glocal Medical College and directed to discharge 67 students admitted by it. They submitted that they were admitted through the counselling conducted by the Glocal Medical College and that they have also cleared the 1st year and 2nd year examination. Opposing their plea, the MCI and the State of Uttar Pradesh submitted that they were admitted by backdoor entry and that their admission is the result of collusion between the Glocal Medical College and them.

The court observed that the notification issued by the State of Uttar Pradesh clearly provided that the admissions were to be done only through the centralized admission process and accordingly held, "in the light of this position, it was not at all permissible for the Glocal Medical College to have conducted private counselling. The admissions which were conducted through the said private counselling cannot be termed as anything else but per se illegal. . Though we have all the sympathies with the students, we will not be in a position to do anything to protect the admissions, which were done in a patently illegal manner."

60. Default Sentences Cannot Be Directed To Run Concurrently

[Case: Dumya Alias Lakhan Alias Inamdar v. State of Maharashtra; Citation: LL 2021 SC 396]

The Supreme Court has observed that the default sentences imposed on a convict cannot be directed to run concurrently. In this case, the accused were convicted under 3(1)(ii) ,3(2) and 3(4) of the Maharashtra Control of Organised Crime Act read with Section 120-B of the Indian Penal Code and were sentenced to imprisonment of 7/10 years. Rupees Five lacs fine was imposed on each and in default three years rigorous imprisonment was ordered. However, all the sentences was ordered to run concurrently.In appeal, it was contended that the default sentences awarded to the convicts were on the excessive side given their economic conditions.

While considering these contentions, the bench of Justices UU Lalit and Ajay Rastogi noted that in Sharad Hiru Kilambe v. State of Maharashtra & Ors, it was held that the default sentence cannot be directed to run concurrently. It was further noted that in Sharad Hiru, the court had observed that the default sentence given to the concerned accused of three years each on three counts was found to be excessive. "Similar situation obtains in the present matter and financial conditions of the appellants are also on the same lines. We therefore, proceed to grant similar relief to the present appellants and direct that the default sentences awarded to each of the appellants on aforesaid three counts shall be one year each in respect of such counts", the court ordered.

61. Reservation Category Person Can't Claim Quota Benefits Simultaneously In Two Successor States

[Case: Pankaj Kumar v. The State of Jharkhand; Citation: LL 2021 SC 397] 

The Supreme Court has held that a person who is entitled to the benefit of reservation in either of the State of Bihar or State of Jharkhand will not be entitled to claim benefit of reservation simultaneously in both the successor States. Allowing such simultaneous claim will defeat the mandate of Articles 341(1) and 342(1) of the Constitution, the Court observed. A division bench comprising Justices UU Lalit and Ajay Rastogi further held that those who are members of the reserved category and are resident of the successor State of Bihar, while participating in open selection in State of Jharkhand shall be treated to be migrants and it will be open to them to participate in general category without claiming the benefit of reservation and vice-versa. Accordingly, the Bench set aside a judgment of the Jhakrhand High Court.

62. Scope And Ambit Of Powers Of Court Under Section 319 CrPC: Supreme Court Summarizes Principles

[Case: Manjeet Singh v. State of Haryana; Citation: LL 2021 SC 398]

The Supreme Court summarized the scope and ambit of the powers of the Court under Section 319 of the Code of Criminal Procedure. Even in a case where the stage of giving opportunity to the complainant to file a protest petition urging upon the trial Court to summon other persons as well as who were named in the FIR but not implicated in the charge-sheet has gone, in that case also, the court is still not powerless by virtue of Section 319 CrPC, the bench of Justices DY Chandrachud and MR Shah observed.

Access full report to read the list of principles enlisted by the Court.

63. Economic Criterion Cannot Be The Sole Basis For Identifying 'Creamy Layer

[Case: Pichra Warg Kalyan Mahasabha Haryana v. State of Haryana; Citation: LL 2021 SC 399]

The Supreme Court has observed that economic criterion cannot be the sole basis for identifying 'creamy layer'. Accordingly, a bench of Justices L. Nageswara Rao and Aniruddha Bose quashed a notification issued by the State of Haryana specifying the criteria for exclusion of 'creamy layer' within the backward classes. "..the State of Haryana has sought to determine 'creamy layer' from backward classes solely on the basis of economic criterion and has committed a grave error in doing so. On this ground alone, the notification dated 17.08.2016 requires to be set aside", the Court observed.

"We quash the notification dated 17.08.2016, giving liberty to the State Government to issue a fresh notification within a period of 3 months from today after taking into account the principles laid down by this Court in Indra Sawhney-I and the criteria mentioned in Section 5(2) of the 2016 Act for determining 'creamy layer'.", the bench further stated. The Court, however, clarified that admissions to educational institutions and appointment to state services on the basis of the notifications dated 17.08.2016 and 28.08.2018 shall not be disturbed.

64. EPF Pension Case : Supreme Court Larger Bench To Decide If There Is Cut-Off Date For Option Under Para 11(3) Of EPS

[Case: The Employees Provident Fund Organization and others v. Sunil Kumar B and others; Citation: LL 2021 SC 400]

The Supreme Court has referred to a larger bench the appeals filed by the Employees Provident Fund Organization (EPFO) and the Union of India challenging the judgments of Kerala, Delhi and Rajasthan High Courts which quashed the Employee's Pension (Amendment) Scheme, 2014. A division bench comprising Justices UU Lalit and Ajay Rastogi said that the principal questions that arise for consideration are : 1. Whether there would be a cut-off date under paragraph 11(3) of the Employees' Pension Scheme and 2. Whether the decision in R.C. Gupta v. Regional Provident Fund Commissioner (2016) would be the governing principle on the basis of which all these matters must be disposed.

Also Read: EPF Pension Case : High Courts Assumed Exercise Of Option Wasn't Necessary For Pension Above Upper Limit, EPFO Argues In Supreme Court

Also Read: EPF Pension Case: Supreme Court To Consider If Reference To Larger Bench Is Needed In View Of 'RC Gupta' Decision

65. How To Exercise The Discretionary Power For Granting Bail? Principles Summarized By Supreme Court

[Case: Harjit Singh v. Inderpreet Singh @ Inder; Citation: LL 2021 SC 401]

The Supreme Court has observed that seriousness of crime is an aspect to be considered while granting bail to an accused. The bench of Justices DY Chandrachud and MR Shah set aside a bail granted by the High Court to a murder accused. One Harjit Singh had approached the Apex Court against the High Court order granting bail to persons accused of murdering his father. He contended that the High Court has not at all considered the seriousness of the offence; the specific allegation in the FIR that even while in jail he hatched the conspiracy along with other co-accused and that he was the master mind and the main conspirator.

"We are of the opinion that the High Court has erred in granting bail to respondent no.1 herein without taking into consideration the overall facts, otherwise having a bearing on exercise of its discretion on the issue. The order passed by the High Court fails to notice material facts and shows nonapplication of mind to the seriousness of the crime and circumstances, which ought to have been taken into consideration.", the Court said while setting aside the bail granted to the accused.

66. Section 482 CrPC: High Court Not Required To Appreciate Evidence To Find Out Whether Accused Is Likely To Be Convicted Or Not

[Case: Saranya v. Bharati; Citation: LL 2021 SC 402]

The Supreme Court has reiterated that, at Section 482 CrPC stage, a High Court is not required to appreciate the evidence to find out whether the accused is likely to be convicted or not. In this case, the High Court had quashed a murder case against one of the accused. The wife of the deceased thus approached the Apex Court contending that there is ample material against the accused. 

Allowing the appeal, a Bench comprising Justices DY Chandrachud and MR Shah observed, "The High Court has entered into the appreciation of the evidence and considered whether on the basis of the evidence, the accused is likely to be convicted or not, which as such is not permissible at all at this stage while considering the application under Section 482 Cr.P.C. The High Court was not as such conducting the trial and/or was not exercising the jurisdiction as an appellate court against the order of conviction or acquittal. Therefore, in the facts and circumstances of the case, the High Court ought not to have quashed the chargesheet qua respondent no.1 herein – original accused no.2."

67. Insistence On Bank Guarantee Of Scheduled Indian Private Banks In Preference To Scheduled Foreign Banks In India A Fallacy

[Case: SEPCO Electric Power Construction Corporation v. Power Mech Projects Ltd; Citation: LL 2021 SC 403]

Justice Indira Banerjee of the Supreme Court has observed in a dissenting judgment that it is incomprehensible why bank guarantee from Scheduled Private Banks in India should be preferred to Scheduled Foreign Banks in India with high global rating, even though, some Scheduled Private Sector Banks have not even been running well.   The bench of Justice Indira Banerjee and V. Ramasubramanian was considering appeals against the High Court order refusing to accept a legally valid irrevocable Bank Guarantee of Rs.30 Crores, issued by the Industrial and Commercial Bank of China Limited, Mumbai, which is a Scheduled Bank included in the Second Schedule of the Reserve Bank of India Act, 1934, and insisting that the Appellant should furnish a fresh Bank Guarantee of the same amount, with identical terms, issued by a "Scheduled Indian Bank", notwithstanding the expenditure incurred by the Appellant in obtaining the Bank Guarantee from ICBC. The Delhi High Court had passed this order in an Arbitration appeal filed under Section 37 of the Arbitration and Conciliation Act.

While Justice Banerjee allowed the appeal, Justice Ramasubramanian observed that the Special Leave Petitions should be dismissed since there is no substantial question of law warranting the interference under Article 136 of the Constitution. Therefore, now the appeal is referred to Chief Justice of India for appropriate directions. "It is incomprehensible why Scheduled Private Banks in India should be preferred to Scheduled Foreign Banks in India with high global rating, even though, some Scheduled Private Sector Banks have not even been running well. It would perhaps not be out of place to take judicial notice of reports that in March, 2020, Yes Bank, a private Sector bank, which was on the brink of complete financial collapse, had to be placed under a moratorium by RBI. Yes Bank has been cited by this Court as an example only to illustrate the fallacy of insistence upon the Bank Guarantee of a Scheduled Indian Bank in preference to that of Scheduled Foreign Bank in India, and not to cast any aspersion on the present functioning of Yes bank or any other Scheduled Bank in the Private Sector in India.", Justice Indira Banerjee observed. 

68. Fundamental Right To Reside Anywhere In/Move Throughout The Country Cannot Be Denied On Flimsy Grounds: Supreme Court Quashes Externment Order Against Journalist

[Case: Rahmat Khan @ Rammu Bismillah v. Deputy Commissioner of Police; Citation: LL 2021 SC 404]

While quashing an externment order passed against a journalist, the Supreme Court has observed that a person cannot be denied his fundamental right to reside anywhere in the country or to move freely throughout the country, on flimsy grounds. The bench comprising Justices Indira Banerjee and V. Ramasubramanian observed that the drastic action of externment should only be taken in exceptional cases, to maintain law and order in a locality and/or prevent breach of public tranquility and peace. In this case, Deputy Commissioner of Police, Zone-1, Amravati City, had passed an externment order under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951, directing the journalist Rahmat Khan @ Rammu Bismillah not to enter or return to Amravati City or Amravati Rural District for a period of one year from the date on which he leaves, or is taken out of Amravati City and/or Amravati Rural District.

"There was no reason for the complainants who lodged the FIRs to get terrorized by the alleged threats, allegedly meted out by the Appellant, for if those complainants had not indulged in unlawful acts, they had nothing to fear. Even otherwise, threat to lodge a complaint cannot possibly be a ground for passing an order of 18 externment under Section 56 of the Maharashtra Police Act, 1951, more so, when the responses of government authorities to queries raised by the Appellant under the Right to Information Act clearly indicate that the complaints are not frivolous ones, without substance. A person cannot be denied his fundamental right to reside anywhere in the country or to move freely throughout the country, on flimsy grounds.", the bench observed while quashing the externment order.

69. Supreme Court Directs Compulsory Retirement Of Judicial Officer; Says Solitary Remark About Lack Of Integrity Sufficient

[Case: High Court of Judicature of Rajasthan v. Bhanwar Lal Lamror; Citation: LL 2021 SC 405]

The Supreme Court has observed that solitary remark regarding lack of integrity is sufficient to order compulsory retirement of a Judicial Officer. The bench of Justices AM Khanwilkar and Sanjiv Khanna set aside a Rajasthan High Court judgment which directed reinstatement of a judicial officer who was compulsorily retired. A judicial officer was compulsorily retired from Rajasthan Higher Judicial Services upon attaining the age of 50 years. The order was passed on the basis of recommendation made by the Administrative Committee which commended to the Full Court of the High Court. However, allowing the writ petition filed by the judicial officer, the High Court, on its judicial side, set aside the order of compulsory retirement, and consequently directed his reinstatement in service with all consequential benefits.

"It is settled position in law that the competent authority is supposed to consider the entire service record of the judicial officer and even if there is a solitary remark of lack and breach of integrity, that may be sufficient for a Judicial Officer to be compulsory retired as expounded in Tarak Singh Vs. Jyoti Basu reported in (2005) 1 SCC 201. The High Court took notice of this judgment, but still ventured to examine the entire record by itself, overlooking the thorough examination conducted by the Administrative Committee, which was affirmed and commended to the Full Court.", the Bench observed. 

70. Element Of Judicial Accountability Is Lost Where Oral Regimes Prevail: Supreme Court Deprecates Practice Of Issuing 'Oral Directions'

[Case: Salimbhai Hamidbhai Menon v. Niteshkumar Maganbhai Patel; Citation: LL 2021 SC 406]

Deprecating the practice of issuing oral directions, the Supreme court said that Judges ought to speak through their judgments and orders and not by issuing oral directions which does not form a part of the judicial record. "The element of judicial accountability is lost where oral regimes prevail. This would set a dangerous precedent and is unacceptable. Judges, as much as public officials over whose conduct they preside, are accountable for their actions.", the bench comprising Justices DY Chandrachud and MR Shah has observed. The court observed thus while considering an appeal against a judgment passed by the High Court when it noted that an oral direction was issued by the Single Judge not to arrest the accused in this case.

"Oral directions of this nature by the High Court are liable to cause serious misgivings. Such a procedure is open to grave abuse. Most High Courts deal with high volumes of cases. Judicial assessments change with the roster. Absent a written record of what has transpired in the course of a judicial proceeding, it would set a dangerous precedent if the parties and the investigating officer were expected to rely on unrecorded oral observations", the Bench further ruled. 

71. Applicability Of Res Judicata Between Co-Defendants: Supreme Court Explains

[Case: Union of India v. S. Narasimhulu Naidu; Citation: LL 2021 SC 408]

The Supreme Court in a recent judgment examined the applicability of res judicata between co-defendants. The court observed that the requisite conditions to apply the principle of res judicata as between co-defendants are that : (a) there must be conflict of interest between the defendants concerned; (b) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and (c) the question between the defendants must have been finally decided.

The Court also observed that the principle of Res Judicata will not apply if the subject matter of the suit is not same as that of earlier suit. For res judicata to apply, the matter in the former suit must have been alleged by one party and either denied or admitted, expressly or impliedly by the other, the bench of Justices Sanjay Kishan Kaul and Hemant Gupta reiterated.