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Access to Justice

Fundamental right of Access to Justice - Abolition of OAT does not violate right of access to justice as cases will be heard by High Court - The fundamental right of access to justice is no doubt a crucial and indispensable right under the Constitution of India. However, it cannot be interpreted to mean that every village, town, or city must house every forum of adjudication created by statute or the Constitution. (Para 112) Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216 : 2023 INSC 271

Administrative Law

Rules of Business - When the Cabinet constitutes a committee and the latter's actions are validated by the Minister and the rest of the Council, then it cannot be claimed that Rules of Business have not been followed by the State Government in the course of its decision-making process. (Para 90) Bishambhar Prasad v. Arfat Petrochemicals, 2023 LiveLaw (SC) 337 : 2023 INSC 406

Notification Issued by Central Govt not invalid merely because it's not issued in the President's name. Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216 : 2023 INSC 271

The Supreme Court directs the Ministry of Law & Justice to conduct judicial impact assessment of all Tribunals at the Earliest. Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216 : 2023 INSC 271

Supreme Court praises Orissa High Court for creatively using technology; Says other HCs should replicate it. Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216 : 2023 INSC 271

'Union Govt has power to abolish State Administrative Tribunal': Supreme Court affirms abolition of Odisha Administrative Tribunal. Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216 : 2023 INSC 271

Administrative Law – Well established principle of - An adjudicatory body cannot base its decision on any material unless the person against whom it is sought to be utilised has been apprised of it and given an opportunity to respond to it. [Para 17] Deepak Ananda Patil v. State of Maharashtra, 2023 LiveLaw (SC) 30 : AIR 2023 SC 533 : 2023 INSC 11

Administrative Law - Principles of - MP Jain and SN Jain's treatise - If without disclosing any evidence to the party, the authority takes it into its consideration, and decides the matter against the party, then the decision is vitiated for it amounts to denial of a real and effective opportunity to the party to meet the case against him - the principle can be seen operating in several judicial pronouncements where non-disclosure of materials to the affected party has been held fatal to the validity of the hearing proceedings. [Para 17] Deepak Ananda Patil v. State of Maharashtra, 2023 LiveLaw (SC) 30 : AIR 2023 SC 533 : 2023 INSC 11

Administrative Law - T. Takano v. Securities and Exchange Board of India - A quasi-judicial authority has a duty to disclose the material that has been relied upon at the stage of adjudication - the actual test is whether the material that is required to be disclosed is relevant for purpose of adjudication - if it is, then the principles of natural justice require its due disclosure. [Para 18] Deepak Ananda Patil v. State of Maharashtra, 2023 LiveLaw (SC) 30 : AIR 2023 SC 533 : 2023 INSC 11

Administrative Law - MD, ECIL, Hyderabad v. B. Karunakar - in order to set aside the order of punishment, the aggrieved person must be able prove that prejudice has been caused to him due to non-disclosure- to prove prejudice, he must prove that had the material been disclosed to him the outcome or the punishment would have been different. [Para 19] Deepak Ananda Patil v. State of Maharashtra, 2023 LiveLaw (SC) 30 : AIR 2023 SC 533 : 2023 INSC 11

Decision will be vitiated if materials are not disclosed to the affected party. Deepak Ananda Patil v. State of Maharashtra, 2023 LiveLaw (SC) 30 : AIR 2023 SC 533 : 2023 INSC 11

Administrative Tribunals Act, 1985

Administrative Tribunals Act 1985 - The relevant State Government has the implied power to issue a request to abolish the SAT in its state to the Union Government. The Union Government in turn has the implied power to rescind the notification by which that SAT was established, thereby abolishing the SAT. (Para 59) Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216 : 2023 INSC 271

Administrative Tribunals Act, 1985 - The Union Government did not become functus officio after establishing the Odisha Administrative Tribunal because the doctrine cannot ordinarily be applied in cases where the government is formulating and implementing a policy. (Para 128 (f)) Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216 : 2023 INSC 271

Adultery

"It is not as if this court approved of adultery": Supreme Court clarifies 'Joseph Shine' judgment that declared Section 497 IPC unconstitutional. Joseph Shine v. Union of India, 2023 LiveLaw (SC) 117 : 2023 INSC 87

Armed Forces Personnel liable to face disciplinary action for adultery despite striking down of Section 497 IPC. Joseph Shine v. Union of India, 2023 LiveLaw (SC) 117 : 2023 INSC 87

Adultery - Joseph Shine v. Union of India (2019) 3 SCC 39 - It is not as if this Court approved of adultery. This Court has found that adultery may be a moral wrong (per Hon'ble Ms. Justice Indu Malhotra). This Court has also held that it will continue to be a ground for securing dissolution of marriage. It has also been described as a civil wrong. (Para 23) Joseph Shine v. Union of India, 2023 LiveLaw (SC) 117 : 2023 INSC 87

Adverse Possession

The onus to prove acquisition by adverse possession shifts on the defendant, once the title of the property has been upheld in the name of Plaintiff by a judgment/decree in an earlier suit between the same parties. (Para 7) Prasanna v. Mudegowda, 2023 LiveLaw (SC) 381 : 2023 INSC 440

Adverse Remarks

Adverse Remarks During Hearings – Live Broadcast and Virtual Hearings – Essential for courts to be extremely cautious while passing adverse remarks against parties involved – Remarks may be passed only with proper justification, in the right forum, and if it is necessary to meet the ends of justice – Stricter standard of responsibility on judges while conducting such court proceedings due to advent of live broadcast and virtual hearings – Held, remarks liable to be expunged for having caused injury to the appellant's reputation on account of being widely circulated by the media – Appeal allowed. Seemant Kumar Singh v. Mahesh P.S., 2023 LiveLaw (SC) 219 : 2023 INSC 272

Advocate

Bar Council of India can prescribe that only graduates from recognized law colleges can enrol as advocates. Bar Council of India v. Rabi Sahu, 2023 LiveLaw (SC) 481 : 2023 INSC 577

Advocates Strikes - The Supreme Court requested all high courts to constitute grievance redressal committees comprising the chief justice and two other senior judges, one from the Bar and another from services to avert lawyers' strikes. District Bar Association Dehradun v. Ishwar Shandilya, 2023 LiveLaw (SC) 331 : AIR 2023 SC 2088 : 2023 INSC 405

Duty of all genuine lawyers to get their degrees verified: Supreme Court forms expert committee to oversee verification. Ajay Shankar Srivastava v. Bar Council of India, 2023 LiveLaw (SC) 307 : 2023 INSC 346 : (2023) 6 SCC 144

Advocates Act, 1961

Advocates Act, 1961 - Bar Council of India can prescribe that only graduates from recognized law colleges can enrol as advocates. The rule framed by BCI requiring a candidate for enrolment as an Advocate to have completed his law course from a college recognized/ approved by BCI cannot be said to be invalid. Bar Council of India v. Rabi Sahu, 2023 LiveLaw (SC) 481 : 2023 INSC 577

Advocates Act, 1961 - Bar Council of India Certificate and Place of Practice (Verification) Rules 2015 - Having regard to the larger dimensions of this matter and the direct impact which the enrollment of fake degree holders and other persons who are not found to be in possession of the qualifications required for entry into the Bar have on the administration of justice, we accede to the suggestion of the Bar Council of India that a High Powered Committee should be constituted by this Court to monitor the process of verification. In our view, such a High-Powered Committee should be chaired by a former Judge of this Court and its members should consist of: (i) two Judges of the High Court; (ii) two senior advocates; and (iii) three members of the Bar Council of India. (Para 13) Ajay Shankar Srivastava v. Bar Council of India, 2023 LiveLaw (SC) 307 : 2023 INSC 346 : (2023) 6 SCC 144

Advocates Act 1961 - No provisions prohibit BCI from prescribing pre-enrolment exam- Neither these provisions, nor the role of the universities to impart legal education, in any way, prohibit the Bar Council of India from conducting pre-enrolment examination, as the Council is directly concerned with the standard of persons who want to obtain a license to practice law as a profession. (Para 20) Bar Council of India v. Bonnie Foi Law College, 2023 LiveLaw (SC) 96 : AIR 2023 SC 854 : 2023 INSC 116 : (2023) 2 SCR 343

Advocates Act 1961 - Quality of lawyers is an important aspect and part of administration of justice and access to justice. Half baked lawyers serve no purpose. It is this quality control, which has been the endeavour of all the efforts made over a period of time. (Para 19) Bar Council of India v. Bonnie Foi Law College, 2023 LiveLaw (SC) 96 : AIR 2023 SC 854 : 2023 INSC 116 : (2023) 2 SCR 343

Advocates Act 1961 - The objective of the legislature while giving wide powers to the Bar Council of India under Section 49 of the Advocates Act which gives it the power to prescribe rules, read with Clause (d) of Sub-section (3) of Section 24, which gives it the power to prescribe norms for entitlement to be enrolled as an advocate under the rules of the Bar Council of India, leads us to the conclusion that these are adequate powers with the Bar Council of India under the said act to provide for such norms and rules. We are, therefore, of the view that while considering the question referred to us, the only conclusion is that the interdict placed by the judgement of this court in V. Sudeer on the powers of the Bar Council of India cannot be sustained and we cannot hold that this decision laid down the correct position of law. The effect of the view expressed by us would be that it is left to the Bar Council of India as to at what stage, the All-India Bar Examination will be held, that is, pre-enrolment, or post-enrolment. (Para 33) Bar Council of India v. Bonnie Foi Law College, 2023 LiveLaw (SC) 96 : AIR 2023 SC 854 : 2023 INSC 116 : (2023) 2 SCR 343

Airports Authority of India Act, 1994

Airports Authority of India Act, 1994; Section 22A - “User development fee” (UDF) levied and collected by the airport operation, maintenance, and development entities from passengers, is a statutory levy, and thus, it is not subjected to levy of service tax under the provisions of the Finance Act, 1994. There is a distinction between the charges, fee and rent collected under Section 22 of the AAI Act and the UDF levied and collected under Section 22A of the AAI Act, the UDF is in the form of a 'tax or cess' collected for financing the cost of future projects. There was no consideration for the services provided by the assessee-entities to the customer, visitors, passengers, vendors, etc. As a part of the Union's economic policies, the upgradation and renovation of airports are funded through UDF, which is a statutory levy, the fact that the UDF amount is not deposited in a government treasury, per se, does not make it any less a statutory levy or compulsory exaction. Nor does its discretionary nature render it any less a statutory levy. Merely because the funds are kept in an escrow account, and their utilization is monitored separately, it does not undermine the public nature of the funds in any manner. Central GST Delhi – III v. Delhi International Airport Ltd., 2023 LiveLaw (SC) 457 : 2023 INSC 572

Amravati Land Scam

The Supreme Court set aside the High Court order which stayed the probe into the Amravati Land Scam, in a plea moved by the government. The High Court ought not to have granted interim stay when it was not required as the entire matter was at a premature stage. The High Court is expected to decide the writ petition on merits in accordance with the law without being influenced by any of the observations made in the order. State of Andhra Pradesh v. Varla Ramaiah, 2023 LiveLaw (SC) 390 : AIR 2023 SC 2150 : 2023 INSC 485

Amendment

Retrospective application for Amendment - Amendment by substitution has the effect of wiping the earlier provision from the statute book and replacing it with the amended provision as if the unamended provision never existed - 2015 amendment substituted "belong/belongs" in Section 153C with "pertain/pertains" and hence is amendment by substitution. (Para 10.4) Income Tax Officer v. Vikram Sujitkumar Bhatia, 2023 LiveLaw (SC) 274 : AIR 2023 SC 1922 : 2023 INSC 327 : (2023) 2 SCR 756

Animal Welfare

Supreme Court upholds laws allowing jallikattu, kambala & bull-cart racing In Tamil Nadu, Karnataka & Maharashtra. Animal Welfare Board of India v. Union of India, 2023 LiveLaw (SC) 447 : AIR 2023 SC 2612 : 2023 INSC 548

'Century old practice': Supreme Court disagrees with 2014 verdict which held that jallikattu was not part of the cultural heritage of Tamil Nadu. Animal Welfare Board of India v. Union of India, 2023 LiveLaw (SC) 447 : AIR 2023 SC 2612 : 2023 INSC 548

Jallikattu Case - Supreme Court refuses to extend fundamental rights to animals. Animal Welfare Board of India v. Union of India, 2023 LiveLaw (SC) 447 : AIR 2023 SC 2612 : 2023 INSC 548

Jallikattu law can't be termed arbitrary merely because bulls lack natural ability to run like horses. Animal Welfare Board of India v. Union of India, 2023 LiveLaw (SC) 447 : AIR 2023 SC 2612 : 2023 INSC 548

Arbitration

Limitation period for arbitration - cause of action to appoint arbitrator commences from the “breaking point” between parties. B and T AG v. Ministry of Defence, 2023 LiveLaw (SC) 466 : AIR 2023 SC 2731 : 2023 INSC 549

Limitation period for arbitration - mere negotiations between parties will not postpone the cause of action. B and T AG v. Ministry of Defence, 2023 LiveLaw (SC) 466 : AIR 2023 SC 2731 : 2023 INSC 549

The Referral Court has the duty to conclusively decide the issue of 'existence & validity of arbitration agreement' raised at pre-referral stage. Magic Eye Developers Pvt. Ltd. v. Green Edge Infrastructure Pvt. Ltd., 2023 LiveLaw (SC) 444 : AIR 2023 SC 2339 : 2023 INSC 528

2015 Arbitration Amendment not applicable though S.11 application was filed after it, if arbitration notice was issued pre-amendment. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service, 2023 LiveLaw (SC) 417 : 2023 INSC 508

Award can be said to be suffering from 'patent illegality' only if it is an illegality apparent on the face of it. Reliance Infrastructure Ltd. v. State of Goa, 2023 LiveLaw (SC) 416 : AIR 2023 SC 2280 : 2023 INSC 514

Court cannot, after setting aside the arbitration award, proceed to grant further relief by modifying the award. Indian Oil Corporation v. Sathyanarayana Service Station, 2023 LiveLaw (SC) 415 : 2023 INSC 507

Arbitration: Supreme Court upholds rejection of S. 8 application since cause of action went beyond transaction containing arbitration agreement. Gujarat Composite Ltd. v. A Infrastructure Ltd., 2023 LiveLaw (SC) 384 : 2023 INSC 470

Arbitration agreement in unstamped contract which is exigible to stamp duty not enforceable: Supreme Court holds by 3:2 majority. N.N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd., 2023 LiveLaw (SC) 343 : 2023 INSC 423

Supreme Court deprecates practice of filing applications in disposed of SLPs to side-step arbitration process. Narsi Creation Pvt. Ltd. v. State of Uttar Pradesh, 2023 LiveLaw (SC) 325 : 2023 INSC 387

Section 34 application must be filed within 90 days limitation to claim exclusion of period when court remain closed. Bhimashankar Sahakari Sakkare Karkhane Niyamita v Walchandnagar Industries Ltd; 2023 LiveLaw (SC) 288 : AIR 2023 SC 1990 : 2023 INSC 335

Limited scrutiny of court under Section 11 of Arbitration Act through the “eye of the needle”, is necessary and compelling. NTPC Ltd v. SPML Infra Ltd; 2023 LiveLaw (SC) 287 : AIR 2023 SC 1974 : 2023 INSC 334 :(2023) 2 SCR 846

12 month's time limit under Section 29A Arbitration Act not applicable to international commercial arbitration. TATA Sons Pvt. Ltd. v. Siva Industries and Holdings Ltd., 2023 LiveLaw (SC) 39 : 2023 INSC 13 : (2023) 5 SCC 421

Starting point of limitation u/section 34(3) Arbitration Act in cases of suo motu correction of award: Supreme Court explains. USS Alliance v. State of Uttar Pradesh, 2023 LiveLaw (SC) 20

Arbitration and Conciliation Act, 1996

Arbitration and Conciliation Act, 1996; Section 11 (6) - Post amendment in 2015, the jurisdiction of the Court under Section 11(6) of the Arbitration Act is confined to examining whether an arbitration agreement exists between the parties – “nothing more, nothing less”. Under Section 11(6A) of the Arbitration Act, referral court is duty bound to consider the dispute/issue with respect to the existence of an Arbitration Agreement. (Para 5.2) Magic Eye Developers Pvt. Ltd. v. Green Edge Infrastructure Pvt. Ltd., 2023 LiveLaw (SC) 444 : AIR 2023 SC 2339 : 2023 INSC 528

Arbitration and Conciliation Act, 1996; Section 11 (6) - The 'pre-referral' jurisdiction of Court under Section 11 (6) consists of two inquiries, (i) existence and validity of arbitration agreement; and (ii) non-arbitrability of dispute. The primary inquiry is about the existence and the validity of an arbitration agreement, which also includes an inquiry as to the parties to the agreement and the applicant's privity to the said agreement. The said matter requires a thorough examination by the referral court. The Secondary inquiry that may arise at the reference stage itself is with respect to the non-arbitrability of the dispute. Both are different and distinct. So far as the first issue with respect to the existence and the validity of an arbitration agreement is concerned, as the same goes to the root of the matter, the same has to be to conclusively decided by the referral court at the referral stage itself. With respect to non-arbitrability of the dispute, the court at pre-referral stage may prima facie examine the arbitrability of claims. The review at the reference stage is done to sideline the cases where litigation must stop at the first stage. (Para 5.3) Magic Eye Developers Pvt. Ltd. v. Green Edge Infrastructure Pvt. Ltd., 2023 LiveLaw (SC) 444 : AIR 2023 SC 2339 : 2023 INSC 528

Arbitration and Conciliation Act, 1996; Section 11 (6) - When the issue of 'existence and validity of an arbitration agreement' is raised at pre-referral stage, then the Court is duty bound to conclusively decide the issue. If the issue regarding 'existence and validity of an arbitration agreement' is left to the Arbitral Tribunal, then it will be contrary to Section 11(6A) of the Arbitration Act. This is to protect the parties from being forced to arbitrate in absence of a valid arbitration agreement. (Para 5.3) Magic Eye Developers Pvt. Ltd. v. Green Edge Infrastructure Pvt. Ltd., 2023 LiveLaw (SC) 444 : AIR 2023 SC 2339 : 2023 INSC 528

Arbitration and Conciliation Act, 1996; Section 11(6) - Appointment of Arbitrator - Limitation period for arbitration - the cause of action to appoint an arbitrator would commence from the “Breaking Point” at which any reasonable party would abandon efforts for at arriving at a settlement and contemplate referral of the dispute for arbitration. “Breaking Point” should be treated as the date at which the cause of action arose for the purpose of limitation. B and T AG v. Ministry of Defence, 2023 LiveLaw (SC) 466 : AIR 2023 SC 2731 : 2023 INSC 549

Arbitration and Conciliation Act, 1996; Section 11(6) - Appointment of Arbitrator - Limitation period for arbitration - Entire history of the negotiation between the parties must be specifically pleaded and placed on record, in order to facilitate the Court to find out what was the “Breaking Point” for the purpose of limitation computation. B and T AG v. Ministry of Defence, 2023 LiveLaw (SC) 466 : AIR 2023 SC 2731 : 2023 INSC 549

Arbitration and Conciliation Act, 1996; Section 11(6) - Appointment of Arbitrator - Limitation period for arbitration - “Cause of action” to mean material facts that are necessary to be proved by the plaintiff to succeed in a suit; and it plays a necessary role in computation of limitation period for bringing an action. If a party simply delays sending a notice seeking reference under the Act 1996 because they are unclear of when the cause of action arose, the claim can become time-barred even before the party realises the same. B and T AG v. Ministry of Defence, 2023 LiveLaw (SC) 466 : AIR 2023 SC 2731 : 2023 INSC 549

Arbitration and Conciliation Act, 1996; Section 11(6) - Appointment of Arbitrator - Limitation period for arbitration - Mere negotiations will not postpone the cause of action for the purpose of limitation - the limitation period of three years for filing such application would commence from the date when the cause of action arose. Subsequent negotiations between the parties, which take place after the cause of action has arisen, will not postpone the cause of action for the purpose of limitation computation. B and T AG v. Ministry of Defence, 2023 LiveLaw (SC) 466 : AIR 2023 SC 2731 : 2023 INSC 549

Arbitration and Conciliation Act, 1996; Section 11(6) - Appointment of Arbitrator - Limitation period for arbitration - Negotiations may continue even for a period of ten years or twenty years after the cause of action had arisen. Mere negotiations will not postpone the “cause of action” for the purpose of limitation. The Legislature has prescribed a limit of three years for the enforcement of a claim and this statutory time period cannot be defeated on the ground that the parties were negotiating. B and T AG v. Ministry of Defence, 2023 LiveLaw (SC) 466 : AIR 2023 SC 2731 : 2023 INSC 549

Arbitration and Conciliation Act, 1996; Section 11(6) - Limitation Act, 1963; Article 137 - the Arbitration Act does not prescribe any time period for filing an application under Section 11(6) for appointment of Arbitrator. Thus, the limitation of three years provided under Article 137 of the Limitation Act, 1963 would apply to such proceedings. The time limit of three years would commence from the period when the right to apply accrues. B and T AG v. Ministry of Defence, 2023 LiveLaw (SC) 466 : AIR 2023 SC 2731 : 2023 INSC 549

Arbitration and Conciliation Act, 1996; Section 11(6) – Limitation Act, 1963; Article 137 - If an infringement of a right happens at a particular time, the whole cause of action will be said to have arisen then and there. In such a case, it is not open to a party to sit tight and not to file an application for settlement of dispute of his right, which had been infringed, within the time provided by the Limitation Act, and, allow his right to be extinguished by lapse of time, and thereafter, to wait for another cause of action and then file an application under Section 11 of the Act 1996 for establishment of his right which was not then alive, and, which had been long extinguished because, in such a case, such an application would mean an application for revival of a right, which had long been extinguished under the Act 1963 and is, therefore, dead for all purposes. Such proceedings would not be maintainable and would obviously be met by the plea of limitation under Article 137 of the Act 1963. B and T AG v. Ministry of Defence, 2023 LiveLaw (SC) 466 : AIR 2023 SC 2731 : 2023 INSC 549

Arbitration and Conciliation Act, 1996; Section 11(6), 11 (6A), 21 - Arbitration and Conciliation (Amendment) Act, 2015 - Where the notice invoking arbitration is issued prior to the coming into force of the 2015 Amendment Act, i.e., prior to 23.10.2015, and the application under Section 11 of the Arbitration Act, seeking appointment of an arbitrator, is made post the enforcement of the Amendment Act, the 2015 Amendment Act shall not be applicable. In Parmar Construction (2019) and Pradeep Vinod Construction (2020), the Supreme Court had specifically held that where the request to refer the dispute to arbitration was made before the 2015 Amendment Act came into effect, the unamended A&C Act shall be applicable for appointment of arbitrator. In BCCI (2018), the Apex Court has ruled the 2015 Amendment Act, 2015 to be prospective in nature only so far as the proceedings under Sections 34 & 36 of the Act are concerned. Further, the application under Section 11(6) was not in issue before the court. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service, 2023 LiveLaw (SC) 417 : 2023 INSC 508

Arbitration and Conciliation Act, 1996; Section 12(5) r/w Schedule VII - the Arbitrator appointed by Union, who is an employee of the Union, is ineligible to be appointed as the Arbitrator as per Para 1 of Schedule VII read with Section 12(5) of the Arbitration Act. Glock Asia-Pacific Ltd. v. Union of India, 2023 LiveLaw (SC) 459 : AIR 2023 SC 2777 : 2023 INSC 568

Arbitration and Conciliation Act, 1996; Section 34, 37 - An award could be said to be suffering from “patent illegality” only if it is an illegality apparent on the face of the award and not to be searched out by way of re-appreciation of evidence - The narrow scope of “patent illegality” cannot be breached by mere use of different expressions which nevertheless refer only to “error” and not to “patent illegality - if an Arbitrator construes the term of contract in a reasonable manner, the award cannot be set aside with reference to the deduction drawn from construction - The possibility of interference would arise only if the construction of the Arbitrator is such which could not be made by any fair minded and reasonable person. (Para 18, 25, 36) Reliance Infrastructure Ltd. v. State of Goa, 2023 LiveLaw (SC) 416 : AIR 2023 SC 2280 : 2023 INSC 514

Arbitration and Conciliation Act, 1996; Section 34, 37 - The Court cannot, after setting aside the award, proceed to grant further relief by modifying the award. It must leave the parties to work out their remedies in a given case even where it justifiably interferes with the award. (Para 27) Indian Oil Corporation v. Sathyanarayana Service Station, 2023 LiveLaw (SC) 415 : 2023 INSC 507

Arbitration and Conciliation Act, 1996; Section 34, 37 - View taken by the arbitrator in the facts, can be characterised as being perverse. It is undoubtedly a plausible view. It closes the door for the court to intervene. The finding of the arbitrator cannot be described as one betraying “a patent illegality". (Para 22) Indian Oil Corporation v. Sathyanarayana Service Station, 2023 LiveLaw (SC) 415 : 2023 INSC 507

Arbitration and Conciliation Act, 1996; Section 8 - the reliefs claimed in the suit fell outside the arbitration clause contained in the agreement executed between the parties. The court reckoned that the issue raised in the civil suit involved multiple transactions, involving different contracting parties and different agreements, all of which, except for one, did not contain an arbitration clause. Gujarat Composite Ltd. v. A Infrastructure Ltd., 2023 LiveLaw (SC) 384 : 2023 INSC 470

Arbitration and Conciliation Act, 1996; Section 8 - The Supreme Court has upheld the decision of the Gujarat High Court where it had upheld the rejection of an application filed under Section 8 of the Act in a commercial civil suit, noting that the cause of action of the suit went beyond the transaction containing the arbitration agreement. Gujarat Composite Ltd. v. A Infrastructure Ltd., 2023 LiveLaw (SC) 384 : 2023 INSC 470

Arbitration and Conciliation Act, 1996; Section 8 - While noting that the reliefs claimed in the suit involved subsequent purchasers of the suit property, which were not signatories to the arbitration agreement, held that, the case did not involve any “doubt” about the non-existence of arbitration agreement in relation to the dispute in question. Gujarat Composite Ltd. v. A Infrastructure Ltd., 2023 LiveLaw (SC) 384 : 2023 INSC 470

Arbitration and Conciliation Act, 1996 - Supreme Court has reiterated that the courts ought not to normally interfere with the arbitral proceedings, especially till the time an arbitral award is not passed - The top court has deprecated the practice of filing applications in disposed of Special Leave Petitions (SLPs) in order to side-step the arbitration process, adding that the said applications must not be entertained by the court. Narsi Creation Pvt. Ltd. v. State of Uttar Pradesh, 2023 LiveLaw (SC) 325 : 2023 INSC 387

Arbitration and Conciliation Act, 1996; Section 11 - Certified copy can be produced at the Section 11 stage only if it clearly indicates the stamp duty paid. If the same is not mentioned, the Court should not act on the said certified copy. N.N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd., 2023 LiveLaw (SC) 343 : 2023 INSC 423

Arbitration and Conciliation Act, 1996; Section 11 - The Apex Court has set aside the decision of the Delhi High Court where the Court had referred the parties to arbitration under Section 11(6) of the A&C Act, after the parties had entered into a Settlement Agreement which recorded that there were no subsisting issues pending between them. The Supreme Court held that the High Court should have exercised the prima facie test to screen and strike down the ex-facie meritless and dishonest litigation. Further, it ought to have examined the issue of the final settlement of disputes in context of the principles laid down in Vidya Drolia and Ors. vs. Durga Trading Corporation ((2021) 2 SCC 1 - The Supreme Court has ruled that while exercising jurisdiction under Section 11(6) of the A&C Act, the court is not expected to act mechanically, and that the limited scrutiny of the court at the pre-reference stage, through the “eye of the needle”, is necessary and compelling. NTPC Ltd v. SPML Infra Ltd; 2023 LiveLaw (SC) 287 : AIR 2023 SC 1974 : 2023 INSC 334 :(2023) 2 SCR 846

Arbitration and Conciliation Act, 1996; Section 11 - the Court at the Section 11 stage is bound to examine the instrument and if found to be unstamped or insufficiently stamped the instrument is to be impounded at this stage itself. N.N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd., 2023 LiveLaw (SC) 343 : 2023 INSC 423

Arbitration and Conciliation Act, 1996; Section 34 - An application under Section 34 must be filed within “prescribed period” of limitation i.e. 90 days, for seeking benefit of exclusion of period during which the Court remained closed from computation of limitation period. If the application is filed by invoking proviso to Section 34(3) of Arbitration Act, which extends the limitation period to further 30 days on the Court's discretion, then benefit of such exclusion would not be available to the applicant. Bhimashankar Sahakari Sakkare Karkhane Niyamita v Walchandnagar Industries Ltd; 2023 LiveLaw (SC) 288 : AIR 2023 SC 1990 : 2023 INSC 335

Arbitration and Conciliation Act, 1996; Section 7 - An arbitration agreement within the meaning of Section 7 of the Act attracts stamp duty and which is not stamped or insufficiently stamped cannot be acted upon in view of Section 35 of the Stamp Act unless following impounding and paying requisite duty. The provisions of Section 33 and the bar under Section 35 of the Stamp Act would render the arbitration agreement contained in such instrument as being non-existent in law until the instrument is validated under the Stamp Act. N.N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd., 2023 LiveLaw (SC) 343 : 2023 INSC 423

Arbitration and Conciliation Act, 1996; Section 7 - Whether the arbitration clause in a contract, which is required to be registered and stamped, but is not registered and stamped, is valid and enforceable? Held, an instrument which is exigible to stamp duty may contain an arbitration clause and which is not stamped cannot be said to be a contract enforceable in law within the meaning of S. 2(h) of the Contract Act and is not enforceable under S 2(g) of the Contract Act. N.N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd., 2023 LiveLaw (SC) 343 : 2023 INSC 423

Arbitration and Conciliation Act, 1996; Section 29A - Post 2019 amendment, the time limit of twelve months as prescribed in Section 29A is applicable to only domestic arbitrations and the twelve-month period is only directory in nature for an international commercial arbitration - Arbitral tribunals in international commercial arbitrations are only expected to make an endeavor to complete the proceedings within twelve months from the date of competition of pleadings and are not bound to abide by the time limit prescribed for domestic arbitrations. (Para 25-29) TATA Sons Pvt. Ltd. v. Siva Industries and Holdings Ltd., 2023 LiveLaw (SC) 39 : 2023 INSC 13 : (2023) 5 SCC 421

Arbitration and Conciliation Act, 1996; Section 29A - Section 29A(1), as amended, is remedial in nature, it should be applicable to all pending arbitral proceedings as on the effective date i.e., 30 August 2019 - The amendment is remedial in that it carves out international commercial arbitrations from the rigour of the timeline of six months. (Para 34) TATA Sons Pvt. Ltd. v. Siva Industries and Holdings Ltd., 2023 LiveLaw (SC) 39 : 2023 INSC 13 : (2023) 5 SCC 421

Arbitration and Conciliation Act, 1996; Section 31(7) - Unless there is a specific bar under the contract, it is always open for the arbitrator / Arbitral Tribunal to award pendente lite interest. (Para 7.5) Indian Railway Construction Company v. National Buildings Construction Corporation, 2023 LiveLaw (SC) 210 : 2023 INSC 248 : (2023) 2 SCR 713

Arbitration and Conciliation Act, 1996; Section 33(3) and 34(3) - The starting point for the limitation in case of suo moto correction of the award, would be the date on which the correction was made and the corrected award is received by the party - Once the arbitral award has been amended or corrected, it is the corrected award which has to be challenged and not the original award. The original award stands modified, and the corrected award must be challenged by filing objections. USS Alliance v. State of Uttar Pradesh, 2023 LiveLaw (SC) 20

Arbitration and Conciliation Act, 1996; Section 34 - Supreme Court sets aside the HC order which set aside an arbitral award - SC hold that HC exceeded in its jurisdiction under Section 34 of the Arbitration Act quashing and setting aside the well-reasoned award passed by the Arbitral Tribunal. Indian Railway Construction Company v. National Buildings Construction Corporation, 2023 LiveLaw (SC) 210 : 2023 INSC 248 : (2023) 2 SCR 713

Arbitration and Conciliation Act, 1996; Section 34(3) - Purpose and Object - To enable the parties to study, examine and understand the award, thereupon, if the party chooses and is advised, draft and file objections within the time specified. USS Alliance v. State of Uttar Pradesh, 2023 LiveLaw (SC) 20

Arbitration and Conciliation Act, 1996; Section 34(3) Proviso - Court has the power to condone the delay for further period of thirty days - Application for condonation of delay can be filed at any time till the proceedings are pending. Of course, exercise of discretion and whether or not the delay should be condoned is a different matter. USS Alliance v. State of Uttar Pradesh, 2023 LiveLaw (SC) 20

Armed Forces

In the armed forces of the Union, including the paramilitary forces, utmost discipline, unity of command et al are the sine qua non. That said, the doctrine of proportionality still holds the field. (Para 36) B.S. Hari Commandant v. Union of India, 2023 LiveLaw (SC) 303 : 2023 INSC 369

Supreme Court sets aside punishment imposed on BSF Commandant for allegedly allowing trans-border drugs smuggling. B.S. Hari Commandant v. Union of India, 2023 LiveLaw (SC) 303 : 2023 INSC 369

High Courts can entertain challenges to orders passed by Armed Forces Tribunal: Supreme Court overruled its Judgment. Union of India v. Parashotam Dass, 2023 LiveLaw (SC) 224 : 2023 INSC 265

Army Act, 1950

Army Act, 1950; Sections 45 and 63 - Miscellanious application filed by UoI seeking clarification of Joseph Shine v. Union of India (2019) 3 SCC 39) - This Court was neither called upon nor has it ventured to pronounce on the effect of Sections 45 and 63 of the 1950 Act as also the corresponding provisions in other Acts or any other provisions of the Acts. We only make this position clear. Joseph Shine v. Union of India, 2023 LiveLaw (SC) 117 : 2023 INSC 87

Auction

Possession of license to do business in shop does not entitle party to allotment of auction platform as matter of right. Gurjit Singh v. Union Territory, 2023 LiveLaw (SC) 180 : AIR 2023 SC 1395 : 2023 INSC 199

Aysuh Mission

Operating Guidelines of the National AYSUH Mission - Paragraph 4(vi)(b) - Order for the purchase of Ayurvedic medicines issued by the State of Uttar Pradesh in favour of Indian Medicines Pharmaceutical Corporation Limited (IMPCL) - Inviting tenders from the entities is the most transparent and non-arbitrary method of allocation that can be undertaken - The State must henceforth purchase Ayurvedic medicines only through a free and transparent procedure such as tenders. The State may deviate from this rule and procure medicines by nomination only if exceptional circumstances exist. In such a situation, the State must demonstrate the existence of exceptional circumstances on the basis of cogent material. (Para 31) Indian Medicines Pharmaceuticals Corporation Ltd. v. Kerala Ayurvedic Co Operative Society Ltd., 2023 LiveLaw (SC) 6 : AIR 2023 SC 314 : (2023) 1 SCR 473 : 2023 INSC 7

B

Bail

Bail - Condition to furnish bank guarantee for granting bail is unsustainable in law. Karandeep Singh v. CBI, 2023 LiveLaw (SC) 482

Accused cannot be denied bail on the sole ground that the co-accused has not surrendered. Sebil Elanjimpally v. State of Odisha, 2023 LiveLaw (SC) 474 : 2023 INSC 557

The Supreme Court has expressed concern over the practice prevailing in Orissa High Court whereby different bail applications arising out of same FIR are listed before different Benches of the High Court. Such practice leads to 'anomalous situation' as some accused may be granted bail by a Bench while some other accused persons (in the same crime) may be denied bail by a different Bench, notwithstanding that all of them are similarly placed in many cases. Pradhani Jani v. State of Odisha, 2023 LiveLaw (SC) 455

High Courts can issue additional directions while considering bail pleas by virtue of powers under Article 226/227. Sanjay Dubey v. State of Madhya Pradesh, 2023 LiveLaw (SC) 435 : 2023 INSC 519

The Supreme Court directs to send Sessions Judge for training as he was not following judgments on bail. Satender Kumar Antil v. Central Bureau of Investigation, 2023 LiveLaw (SC) 410

Chargesheet not incomplete merely because it was filed without sanction; the accused can't seek default bail on that ground. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377 : 2023 INSC 472

Don't seek extension of time for investigation at the last moment, accused will get right to default bail: Supreme Court to NIA, Police. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377 : 2023 INSC 472

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

Seeking pre-deposit of bank guarantee for grant of bail is unsustainable. Makhijani Pushpak Harish v. State of Gujarat, 2023 LiveLaw (SC) 345

The order of the High Court directing that the appellant be arrested immediately and seeking an explanation from the Second Additional Sessions Judge was wholly disproportionate and was not warranted. Such orders of the High Court produce a chilling effect on the District judiciary. The members of the district judiciary cannot be placed in a sense of fear if they were to exercise the jurisdiction lawfully entrusted to them for granting bail in appropriate cases. Totaram v. State of Madhya Pradesh, 2023 LiveLaw (SC) 289

Supreme Court expresses anguish at trial court dismissing bail application ignoring its judgment in Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577 - Directs District Judge to transfer case to another Magistrate - Reminds that Prosecutors have duty to inform the court of the correct legal position. Deepak Kumar Azad @ Pappu v. State of Bihar, 2023 LiveLaw (SC) 278

Day of remand should be included for considering default bail claim: Supreme Court answers reference. Enforcement Directorate v. Kapil Wadhawan, 2023 LiveLaw (SC) 249 : 2023 INSC 723

'Large number of remand orders passed in violation of law are from Uttar Pradesh': Supreme Court seeks Allahabad HC's intervention. Satendra Kumar Antil v. Central Bureau of Investigation, 2023 LiveLaw (SC) 233

Supreme Court warns magistrates who don't follow judgments on bail; says they might be taken off from judicial work & sent for training. Satendra Kumar Antil v. Central Bureau of Investigation, 2023 LiveLaw (SC) 233

Supreme Court displeased that Magistrates are passing custody orders in violation of the directions in Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577 - It is the duty of the High Courts that it ensures that the subordinate judiciary under their supervision follows the law of the land. If such orders are being passed by some Magistrates it may even require some judicial work to be withdrawn and the magistrate to be sent to judicial academies for upgradation of their skills. (Para ii) Satendra Kumar Antil v. Central Bureau of Investigation, 2023 LiveLaw (SC) 233

All prosecuting agencies / State Governments / UTs should issue directions to the Public Prosecutors so that neither in pleadings nor in arguments, is a stand taken contrary to the legal position enunciated by this Court. The circulation in this behalf should be made through the Director of Prosecution and training programmes be organized to keep on updating the Prosecutors in this behalf. (Para IV) Satendra Kumar Antil v. Central Bureau of Investigation, 2023 LiveLaw (SC) 233

Ensure basic essentials such as FIR number, police station are recorded in bail orders: Supreme Court to all High Courts. Ravish Kumar v. State of Bihar, 2023 LiveLaw (SC) 206

'Bail can be cancelled if serious offences are subsequently added to FIR': Supreme Court sets aside bail in 'casting couch' case. Ms. X v. State of Maharashtra, 2023 LiveLaw (SC) 205 : (2023) 2 SCR 1112 : 2023 INSC 252

The Supreme Court expresses anguish at Trial Courts acting in violation of its judgments on bail & remand. Chandmal v. State of M.P., 2023 LiveLaw (SC) 94

Bail & Remand: Supreme Court expresses anguish at trial courts acting in violation of its judgments in Siddharth vs. State of Uttar Pradesh LL 2021 SC 391 & Satender Kumar Antil v. Central Bureau of Investigation & Anr. – 2022 LiveLaw (SC) 577 - We fail to understand why despite these judgments having been circulated, some of the trial Courts are conducting and passing the orders in the teeth of these judgments. It is a matter of concern that these cases thus, keep on coming up to the apex Court unnecessarily. Chandmal v. State of M.P., 2023 LiveLaw (SC) 94

Virtual Hearing - We would normally expect that even in the District Courts, in the Covid period, arrangements would have been made for virtual hearing. It is not as if the virtual method of appearing before the Court has to be abandoned as this is an alternative method of appearance now which is to be followed by different Courts. Chandmal v. State of M.P., 2023 LiveLaw (SC) 94

Interim victim compensation cannot be imposed as a condition for bail. Talat Sanvi v. State of Jharkhand, 2023 LiveLaw (SC) 83 : (2023) 1 SCR 289 : 2023 INSC 80

If bail bonds are not furnished within one month, Trial Courts may consider suo motu relaxing conditions. In Re Policy Strategy for Grant of Bail, 2023 LiveLaw (SC) 76

Supreme Court issues directions to avoid delay in release of prisoners after getting bail. In Re Policy Strategy for Grant of Bail, 2023 LiveLaw (SC) 76

Supreme Court disapproves Allahabad HC dismissing several bail applications on the same day for default. Rahul Sharma v. State of Uttar Pradesh, 2023 LiveLaw (SC) 64

Supreme Court overturned a bail condition imposed by the High Court that a person accused of illegally claiming Input Tax Credit must deposit Rs. 70 lakhs, the alleged amount of improperly claimed ITC - Centre conceded that such a condition is unsustainable when final assessment has not taken place. Subhash Chauhan v. Union of India, 2023 LiveLaw (SC) 61

Process of criminal law not for money recovery; Bail can be granted irrespective of payment of money involved. Bimla Tiwari v. State of Bihar, 2023 LiveLaw (SC) 47 : (2023) 1 SCR 501 : 2023 INSC 45

Excessive conditions cannot be imposed while granting bail / suspension of sentence. Guddan @ Roop Narayan v. State of Rajasthan, 2023 LiveLaw (SC) 45

Bar Council

Supreme Court Constitution Bench upholds the validity of All India Bar Examination - Recongizes the right of Bar Council of India to prescribe such a condition for practice - Overrules decision in V. Sudeer v. Bar Council of India, (1999) 3 SCC 176, in which the top court had held that no condition, other than those enumerated in Section 24 of the Advocates Act, could be imposed on a person wishing to practise law-Court however clarifies that the setting aside of the judgment in V. Sudeer is in no manner an imprimatur to mandating the requirement of pre-enrolment training. Bar Council of India v. Bonnie Foi Law College, 2023 LiveLaw (SC) 96 : AIR 2023 SC 854 : 2023 INSC 116 : (2023) 2 SCR 343

All India Bar Examination - It has to be left to the Bar Council of India as to at what stage the All India Bar Examination has to be held – pre or post enrolment. (Para 35) Bar Council of India v. Bonnie Foi Law College, 2023 LiveLaw (SC) 96 : AIR 2023 SC 854 : 2023 INSC 116 : (2023) 2 SCR 343

All India Bar Examination - Strictly follow the schedule of conducting AIBE twice a year as otherwise the students with law degrees would be left idling their time. (Para 36) Bar Council of India v. Bonnie Foi Law College, 2023 LiveLaw (SC) 96 : AIR 2023 SC 854 : 2023 INSC 116 : (2023) 2 SCR 343

All India Bar Examination - Supreme Court accepts the suggestion of amicus curiae that students who have cleared all examinations to be eligible to pursue the final semester of the final year course of law, on production of proof of the same, could be allowed to take the All India Bar Examination - During the interrugnum between passing the university and enrolment, any graduate with the degree who is yet to appear for the Bar examination or get enrolled under the said Act should be able to do all the tasks allied to the legal profession other than the function of acting or pleading before the courts. (Para 38) Bar Council of India v. Bonnie Foi Law College, 2023 LiveLaw (SC) 96 : AIR 2023 SC 854 : 2023 INSC 116 : (2023) 2 SCR 343

All India Bar Examination - BCI may lay down a rule that people who were in non-legal jobs for a certain number of years should qualify AIBE to rejoin legal profession. (Para 42) Bar Council of India v. Bonnie Foi Law College, 2023 LiveLaw (SC) 96 : AIR 2023 SC 854 : 2023 INSC 116 : (2023) 2 SCR 343

Bar Council of India - Ensure enrolment fee does not become oppressive- different State Bar Councils are charging different fees for enrolment. This is something which needs the attention of the Bar Council of India, which is not devoid of the powers to see that a uniform pattern is observed and the fee does not become oppressive at the threshold of young students joining the Bar. (Para 44) Bar Council of India v. Bonnie Foi Law College, 2023 LiveLaw (SC) 96 : AIR 2023 SC 854 : 2023 INSC 116 : (2023) 2 SCR 343

Bar Council of India Certificate and Place of Practice (Verification) Rules 2015 - The due verification of advocates who are enrolled with the State Bar Councils, is of utmost importance to preserve the integrity of the administration of justice. Persons who profess to be lawyers, but do not either have the educational qualifications or degree certificates on the basis of which they could have lawfully granted entry to the Bar, pose a grave danger to the administration of justice to citizens. Hence, it is the duty of every genuine advocate of the country to ensure that they cooperate with the Bar Council of India which is seeking to ensure that the certificates of practice are duly verified, together with the underlying educational degree certificates. Unless this exercise is carried out periodically, there is a danger that the administration of justice would be under a serious cloud. (Para 10) Ajay Shankar Srivastava v. Bar Council of India, 2023 LiveLaw (SC) 307 : 2023 INSC 346 : (2023) 6 SCC 144

Banking Law

Borrowers have right to be heard before their accounts are classified as fraud - the decision to classify the account as fraudulent must be made by a reasoned order - Since the RBI's Master Directions do not expressly provide for an opportunity of hearing to the borrower, audi alteram partem must be read into the provisions to save them from the vice of arbitrariness. State Bank of India v. Rajesh Agarwal, 2023 LiveLaw (SC) 243 : AIR 2023 SC 1859 : (2023) 6 SCC 1 : 2023 INSC 303

Bhopal Gas Tragedy

Bhopal Gas Tragedy - Supreme Court dismisses Centre's curative plea seeking additional compensation from Union Carbide Corporation after reopening settlement entered in 1989 which was approved by the Supreme Court-The Union has filed the present curative petitions seeking to reopen the settlement after opposing attempts by private parties to do so. The responsibility was placed on the Union of India, being a welfare State to make good the deficiency and to take out the relevant insurance policies. Surprisingly, we are informed that no such insurance policy was taken out. This is gross negligence on part of the Union of India and is a breach of the directions made in the review judgment. The Union cannot be negligent on this aspect and then seek a prayer from this Court to fix such liability on UCC. (Para 46) Union of India v. Union Carbide Corporation, 2023 LiveLaw (SC) 200 : AIR 2023 SC 1546 : 2023 INSC 222

Bhopal Gas Tragedy - While we sympathize with the victims of the awful tragedy, we are unable to disregard settled principles of law, particularly at the curative stage. Mere sympathy for the sufferers does not enable us to devise a panacea; more so while looking into the nature of dispute, and the multifarious occasions on which this Court has applied its mind to the settlement. (Para 40) Union of India v. Union Carbide Corporation, 2023 LiveLaw (SC) 200 : AIR 2023 SC 1546 : 2023 INSC 222

Bhopal Gas Tragedy - Union of India's claim for a 'top up' has no foundations in any known legal principle. Either a settlement is valid or it is to be set aside in cases where it is vitiated by fraud. No such fraud has been pleaded by the Union, and their only contention relates to a number of victims, injuries, and costs that were not contemplated at the time the settlement was effected - We are equally dissatisfied with the Union being unable to furnish any rationale for raking up this issue more than two decades after the incident. (Para 47, 48) Union of India v. Union Carbide Corporation, 2023 LiveLaw (SC) 200 : AIR 2023 SC 1546 : 2023 INSC 222

Bhopal Gas Tragedy - A sum of Rs.50 crore lying with the RBI shall be utilised by the Union of India to satisfy pending claims, if any, in accordance with the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 and the Scheme framed thereunder. (Para 49) Union of India v. Union Carbide Corporation, 2023 LiveLaw (SC) 200 : AIR 2023 SC 1546 : 2023 INSC 222

Bhopal Gas Tragedy - Providing closure to a lis is also a very important aspect. This is more so in the context of the scenario faced by the Indian judiciary, where delay is almost inevitable. This concern would be further amplified in respect of a tort claim such as the present one - if evidence were to be led for each claimant, this would open a pandora's box in UCC's favour and would only be to the detriment of the beneficiaries. (Para 50) Union of India v. Union Carbide Corporation, 2023 LiveLaw (SC) 200 : AIR 2023 SC 1546 : 2023 INSC 222

Border Security Force Act, 1968

Border Security Force Act, 1968 - Supreme Court quashes the order of General Security Force Court imposing dismissal from service, imprisonment for 10 years and fine of 1 lakh on a a BSF commandment for allegedly allowing cross-border transport of substances banned under the NDPS Act-appellant held entitled to full retiral benefits from the date of his superannuation till date. B.S. Hari Commandant v. Union of India, 2023 LiveLaw (SC) 303 : 2023 INSC 369

Building

The Supreme Court upholds rule requiring builders to reserve open spaces in developed plots. Association of Vasanth Apartments Owners v. V. Gopinath, 2023 LiveLaw (SC) 105 : AIR 2023 SC 1011 : 2023 INSC 123

Building Rules - Supreme Court upheld a rule which mandated that builders should reserve open spaces in the plots developed by them- Regulation 19 of Development Control Rules for the Chennai Metropolitan Area. Association of Vasanth Apartments Owners v. V. Gopinath, 2023 LiveLaw (SC) 105 : AIR 2023 SC 1011 : 2023 INSC 123

Building Rules - Mandate to reserve 10% open space area does not violate Article 14 and 300A of the Constitution- It does not amount to compulsory acquisition. (Para 51, 66, 137,148, 154) Association of Vasanth Apartments Owners v. V. Gopinath, 2023 LiveLaw (SC) 105 : AIR 2023 SC 1011 : 2023 INSC 123

Building Rules - Open Spaces - Areas covered by the Open Space Regulations cannot be diverted for any other purpose - The respondents (local authorities) are duty-bound to ensure that the area set apart as OSR is stringently utilised only for the purpose in the Rule/Regulation. We direct that no area meant for OSR shall be utilised as dumping yards or any other purpose other than as OSR. (Para 178) Association of Vasanth Apartments Owners v. V. Gopinath, 2023 LiveLaw (SC) 105 : AIR 2023 SC 1011 : 2023 INSC 123

Building Tax Act 1975 (Kerala)

Building Tax Act 1975 (Kerala); Explanation to Section 3(1) - 'Charitable purpose' not limited to 'free medical relief'- The Explanation goes to indicate that 'charitable purposes' includes and is, therefore, not confined to the relief of the poor and free medical relief. Consequently, the decision in SH Medical Centre Hospital vs State Of Kerala & Ors (2014) 11 SCC 381 to the extent of the interpretation which is placed on the Explanation to Section 3(1)(b) of the Kerala Building Tax Act 1975 does not correctly reflect the position in law which is clarified above. The decision in SH Medical Centre Hospital is, therefore, overruled to the above extent. (Para 10) Lisie Medical Institutes v. State of Kerala, 2023 LiveLaw (SC) 118 : 2023 INSC 720

Building Tax Act 1975 (Kerala); Explanation to Section 3(1) - Section 3(1)(b) provides that nothing in the Act shall apply to buildings which are used 'principally' for specific purposes, including among them, 'charitable purposes'. The expression “principally” conveys the meaning of that which is the dominant purpose. The interpretation placed by the two-Judge Bench on the expression “principally used for charitable purposes” does not call for interference in view of the statutory language used in Section 3(1). Principal use refers to the dominant substantive use as distinguished from an ancillary use. (Para 9) Lisie Medical Institutes v. State of Kerala, 2023 LiveLaw (SC) 118 : 2023 INSC 720

C

Canon Law

Kerala High Court's observation that church assets are governed by public trust law and Bishops have no power to alienate them are prima facie in nature, no finality can be attached to them. (Para 21, 22) Cardinal Mar George Alencherry v. State of Kerala, 2023 LiveLaw (SC) 203 : (2023) 2 SCR 1014 : 2023 INSC 250

Carriage

Section 16 Carriage by Road Act applicable to suit/ legal proceedings in connection with loss/damage to consignment alone. ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378 : AIR 2023 SC 2140 : 2023 INSC 471

Carriage by Road Act, 2007

Carriage by Road Act, 2007; Section 16 - Suit and legal proceedings in connection with the loss or damage to the consignment alone are covered by Section 16 for which purpose, a notice is mandatory. The said provision has no application in reference to loss of any other kind or the suit or legal proceedings instituted for recovery of damages in respect of loss of different nature. (Para 17-19) ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378 : AIR 2023 SC 2140 : 2023 INSC 471

CCTV

Comply with directions to install CCTVs in police stations: Supreme Court gives warning to Centre, States. Paramvir Singh Saini v. Baljit Singh, 2023 LiveLaw (SC) 134

Central Civil Services (Pension) Rules 1972

Central Civil Services (Pension) Rules 1972; Rule 13 - Service rendered as casual / contractual cannot be said to be service rendered on a substantive appointment - Can't be counted towards qualifying services for pensionary benefits - The High Court has materially erred in observing that the contractual service would be qualified as service in a temporary capacity. Director General, Doordarshan Prasar Bharti Corporation v. Magi H. Desai, 2023 LiveLaw (SC) 248 : AIR 2023 SC 1623 : 2023 INSC 290

Central Civil Services (Pension) Rules, 1972; Rule 54(14)(b) - A case where a child is born to the deceased government servant after his death has to be contrasted with a case where a child is adopted by the widow of a government servant after his death. The former category of heirs are covered under the definition of family since such a child would be a posthumous child of the deceased government servant. (Para 14) Shri Ram Shridhar Chimurkar v. Union of India, 2023 LiveLaw (SC) 40 : AIR 2023 SC 618 : (2023) 4 SCC 312 : (2023) 1 SCR 931 : 2023 INSC 49

Central Civil Services (Pension) Rules, 1972; Rule 54(14)(b) - Hindu Adoptions and Maintenance Act, 1956; Sections 8 and 12 - Family Pension - A son or daughter adopted by the widow of a deceased government servant, after the death of the government servant, could not be included within the definition of 'family' - Rights and entitlements of an adopted son of a Hindu widow, as available in Hindu Law, as against his adoptive family, cannot axiomatically be held to be available to such adopted son, as against the government, in a case specifically governed by extant pension rules. (Para 10-12) Shri Ram Shridhar Chimurkar v. Union of India, 2023 LiveLaw (SC) 40 : AIR 2023 SC 618 : (2023) 4 SCC 312 : (2023) 1 SCR 931 : 2023 INSC 49

Central Civil Services (Pension) Rules, 1972; Rule 54(14)(b) - The phrase “in relation to a government servant” would indicate that the categories of persons listed thereunder, such as wife, husband, judicially separated wife or husband, son or unmarried daughter who has not attained the age of twenty-five years, adopted son or daughter, etc. are sought to be brought into association with the deceased government servant. The context requires that association or connection of such persons with the deceased government servant must be direct and not remote. The said Rule requires that the family member must have a close nexus with the deceased government servant, and must have been dependent on him during his lifetime. (Para 11.1) Shri Ram Shridhar Chimurkar v. Union of India, 2023 LiveLaw (SC) 40 : AIR 2023 SC 618 : (2023) 4 SCC 312 : (2023) 1 SCR 931 : 2023 INSC 49

Central Excise

Mere broad-basing of entries under Central Excise Tariff Act, cannot justify re-classification, without change in nature, character or use of the product. Commissioner of Customs, Central Excise and Service Tax v. Ashwani Homeo Pharmacy, 2023 LiveLaw (SC) 397 : 2023 INSC 483

Central Excise Act - No separate notice necessary for recovery of erroneous refund granted. Commissioner of Central Excise v. Morarjee Gokuldas Spg. & Wvg. Co.Ltd., 2023 LiveLaw (SC) 259 : 2023 INSC 285

Central Excise Act - To be "related person", buyer & seller must have direct or indirect interest in each other's business. Bilag Industries P. Ltd. v. Commr. of Cen. Exc. Daman, 2023 LiveLaw (SC) 257 : 2023 INSC 274

Only retail sale can claim assessment benefits under Section 4A of Central Excise Act. Commissioner of Central Excise & Service v. A.R. Polymers Pvt. Ltd., 2023 LiveLaw (SC) 223 : (2023) 2 SCR 1147 : 2023 INSC 268

Supreme Court upholds Sec 9D Central Excise & Salt Act; Asks cigarette company to pay Rs 5 lakh cost for cancer affected children. GTC Industries Ltd v. Collector of Central Excise, 2023 LiveLaw (SC) 107 : 2023 INSC 111

Central Excise Act, 1944 - No separate notice under Section 11A of the Central Excise Act is necessary for the recovery of erroneous refund - Once the order in original sanctioning the refund came to be set aside in a proceeding under Section 35E of the Act and the proceedings under Section 35E was initiated within the time prescribed under Section 35E of the Act, thereafter there is no question of any further notice under Section 11A of the Central Excise Act. Commissioner of Central Excise v. Morarjee Gokuldas Spg. & Wvg. Co.Ltd., 2023 LiveLaw (SC) 259 : 2023 INSC 285

Central Excise Act, 1944; Section 4(A) - For a sale of goods to qualify for assessment benefits under Section 4(A) of the Act, it must be a retail sale, and there must be a mandate of law that directs the seller to affix a retail price on the goods for a sale to be considered a retail sale. Commissioner of Central Excise & Service v. A.R. Polymers Pvt. Ltd., 2023 LiveLaw (SC) 223 : (2023) 2 SCR 1147 : 2023 INSC 268

Central Excise Act, 1994; Section 4(4)(c) - Test to determine "related party"- buyer and seller had to be interested in one another's businesses. Since two-way traffic is required, there shouldn't be any one-way traffic. Bilag Industries P. Ltd. v. Commr. of Cen. Exc. Daman, 2023 LiveLaw (SC) 257 : 2023 INSC 274

Central Excise and Salt Act, 1944

Central Excise and Salt Act, 1944 - Supreme Court endorses Delhi High Court judgment upholding Section 9D - Pulls up cigarette company for protracting proceedings - Asks it to pay Rs 5 lakh cost to any charitable organisation involved in providing help, assistance and relief to children suffering from cancer. GTC Industries Ltd v. Collector of Central Excise, 2023 LiveLaw (SC) 107 : 2023 INSC 111

Central Excise Tariff Act, 1985

Central Excise Tariff Act, 1985 - Mere broad-basing of entries under the Act, cannot justify re-classification, without a change in the nature, character or use of the product. The revenue department was not justified in seeking to re-open the settled position in relation to the classification of a product, merely on the ground of the amendment made to the Central Excise Tariff in the year 2012, which had made certain changes in Chapter 30 and Chapter 33. While holding that the said changes had no impact on the product in question, the court by applying the twin test of 'common/commercial parlance test' and the 'ingredients test', held that the said product merited classification as 'medicament' under Chapter 30 and not as 'cosmetic or toilet preparations' under Chapter 33 of the First Schedule to the Act. Commissioner of Customs, Central Excise and Service Tax v. Ashwani Homeo Pharmacy, 2023 LiveLaw (SC) 397 : 2023 INSC 483

Central Excise Tariff Act, 1985 - Classification of Automatic Data Processing Machines - Portable - Weight cannot be the sole factor to determine the factum of portability. Instead, the essential ingredients to logically establish whether an ADP is 'portable' are (1) their ability to be carried around easily which includes all aspects such as weight and their dimensions- In appropriate cases, this assessment would also take into consideration the necessary accessories which are required for safe and efficient usage such as mounted stands or any power adapters (1) the ADP must be suitable for daily transit of a consumer and would include aspects such as durability to withstand frequent commute and damage protection - The Concerned Goods are not portable for the reasons (1) the diagonal dimension of the Concerned Goods being minimum of the length of 18.5 inches and the same needs to be transported along with the power cable as well as the applicable stand in most cases if it is to be mounted and (2) there being no protective case designed by the markets for daily transport for these Concerned Goods. Such requirements make the Concerned Goods unable to be carried around easily during daily transit. Hewlett Packard India Sales Pvt. Ltd. v. Commissioner of Customs (Import), 2023 LiveLaw (SC) 43 : AIR 2023 SC 498 : (2023) 1 SCR 1123 : 2023 INSC 50

Central Excise Tariff Act, 1985 - Since the customs authorities wanted to classify the goods differently, the burden of proof to showcase the same was on them. (Para 23) Hewlett Packard India Sales Pvt. Ltd. v. Commissioner of Customs (Import), 2023 LiveLaw (SC) 43 : AIR 2023 SC 498 : (2023) 1 SCR 1123 : 2023 INSC 50

Central Goods and Services Tax, 2017

Central Goods and Services Tax, 2017; Section 130 - Observing that it was "premature" on the part of the High Court to quash a show-cause notice issued under Section 130 of the Central Goods and Service Tax Act by invoking Article 226 jurisdiction, the Supreme Court set aside an order passed by the Punjab and Haryana High Court. State of Punjab v. Shiv Enterprises, 2023 LiveLaw (SC) 56

Central Reserve Police Force Act, 1949

Central Reserve Police Force Act, 1949; Section 9, 10 - The misconduct of misbehaving with the superior/senior officer and of insubordination can be said to be a very serious misconduct and cannot be tolerated in a disciplined force like CRPF - Whether a member of the force has committed a heinous offence or a less heinous offence as per Sections 9 and 10 would have bearing on inflicting the punishment as provided under Sections 9 and 10 but has no relevance on the disciplinary proceedings/departmental enquiry for the act of indiscipline and/or insubordination. (Para 6) Union of India v. Const. Sunil Kumar, 2023 LiveLaw (SC) 49 : AIR 2023 SC 554 : (2023) 1 SCR 961 : 2023 INSC 55

Cheque

Cheque cases can be transferred from one state to another invoking Section 406 Cr.P.C. Yogesh Upadhyay v. Atlanta Ltd., 2023 LiveLaw (SC) 125 : AIR 2023 SC 1151 : (2023) 2 SCR 511 : 2023 INSC 150

Section 138 NI Act - Accused relies on income tax returns to show complainant did not have financial capacity; Supreme Court affirms acquittal. Rajaram Sriramulu Naidu v. Maruthachalam, 2023 LiveLaw (SC) 46 : AIR 2023 SC 471 : (2023) 1 SCR 809 : 2023 INSC 51

Cinema

Cinema theatres can prohibit viewers from bringing food articles from outside. K.C. Cinema v. State of Jammu and Kashmir, 2023 LiveLaw (SC) 38 : (2023) 5 SCC 786 : 2023 INSC 6

Cinema Theatres- Supreme Court upholds the right of cinema theatres and multiplexes to prohibit the taking of food and beverages from outside. K.C. Cinema v. State of Jammu and Kashmir, 2023 LiveLaw (SC) 38 : (2023) 5 SCC 786 : 2023 INSC 6

Right of cinema theatres to prohibit outside food - The condition of entry is imposed as a direct result of the exercise of the right of cinema owners to carry on a business or trade under Article 19(1)(g) of the Constitution. The commercial logic of prohibiting movie goers from carrying their own food to the cinema hall is to stimulate and boost a vital aspect of the business – the sale of food and beverages. If business owners are not permitted to determine the various facets of their business (in accordance with law), economic activity would come to a grinding halt. While movie goers may have no choice but to sign on the proverbial dotted line (and thereby not carry any food of their own into the theatre) in order to enter the cinema hall and watch a movie of their choice, this does not by itself render the condition of entry unfair, unreasonable or unconscionable. (Para 31) K.C. Cinema v. State of Jammu and Kashmir, 2023 LiveLaw (SC) 38 : (2023) 5 SCC 786 : 2023 INSC 6

Restriction on bringing food and beverages in theatres from outside is not unfair, unreasonable or unconscionable. (Para 30) - Whether or not to watch a movie is entirely within the choice of viewers. If viewers seek to enter a cinema hall, they must abide by the terms and conditions subject to which entry is granted. Having reserved the right of admission, it is open to theatre owners to determine whether food from outside the precincts of the cinema hall should be permitted to be carried inside (Para 27) K.C. Cinema v. State of Jammu and Kashmir, 2023 LiveLaw (SC) 38 : (2023) 5 SCC 786 : 2023 INSC 6

Citizenship

The Supreme Court sets aside the ex-parte order of the Foreigners Tribunal which declared a woman non-indian. Rashida Begum @ Rashida Khatun v. Union of India, 2023 LiveLaw (SC) 85

Centre's decision to bar OCI (Overseas Citizens of India) students from general seats will apply to only those who register as OCIs after 04.03.2021. Anushka Rengunthwar v. Union of India, 2023 LiveLaw (SC) 73 : AIR 2023 SC 903 : 2023 INSC 99

Citizenship Act, 1955 - Assam NRC - Section 6A - Supreme Court sets aside ex-parte order of a Foreigners Tribunal which declared a woman to be not Indian citizen - Directs that the matter be considered on merits afresh with opportunity to the appellant furnish materials. Rashida Begum @ Rashida Khatun v. Union of India, 2023 LiveLaw (SC) 85

Citizenship Act, 1955; Section 7B - Rights of Overseas Citizens of India - Notification dated 04.03.2021 issued by MHA barring OCI students from competing in seats meant for Indian students in NEET/JEE challenged- Court holds that the notification will apply only prospectively from 04.03.2021- Provisions as contained therein shall apply prospectively only to persons who are born in a foreign country subsequent to 04.03.2021 and who seek for a registration as OCI cardholder from that date. (Para 55) Anushka Rengunthwar v. Union of India, 2023 LiveLaw (SC) 73 : AIR 2023 SC 903 : 2023 INSC 99

Citizenship Act, 1955; Section 7B - Rights of Overseas Citizens of India - Court urges that higher echelons of the Executive should relook the future application of the notification dated 04.03.2021 having regard to the wide ramifications on Indian diaspora. (Para 59) Anushka Rengunthwar v. Union of India, 2023 LiveLaw (SC) 73 : AIR 2023 SC 903 : 2023 INSC 99

Civil Law

Security furnished by a judgment debtor in the form of a rented shop belonging to a third party cannot be accepted. Arti Dixit v. Sushil Kumar Mishra, 2023 LiveLaw (SC) 473 : 2023 INSC 556

'Lis Pendens' under O. XXI Rule 102 CPC to transfer after suit's dismissal - Executing Court should determine if transfer was before appeal. Jini Dhanrajgir v. Shibu Mathew, 2023 LiveLaw (SC) 450 : AIR 2023 SC 2567 : 2023 INSC 544

Order VII Rule 11 CPC - Plaint to be rejected if it is vexatious, illusory cause of action and barred by limitation. Ramisetty Venkatanna v. Nasyam Jamal Saheb, 2023 LiveLaw (SC) 372 : 2023 INSC 458

Order VII Rule 11 CPC - Inconsistencies in plaint averments not a sufficient reason to reject plaint. G. Nagaraj v. B.P. Mruthunjayanna, 2023 LiveLaw (SC) 311

For res judicata to apply, previous suit should have been decided on merits: Supreme Court explains principles. Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC 317

[Order 17 Rule 3 CPC] Suit can be decided on merit if there is some material, though it may not be strictly "evidence". Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC 317

Should a Judgment be reviewed because it followed a precedent which was later overruled ? Govt. of NCT of Delhi v. K.L. Rathi Steels Ltd; 2023 LiveLaw (SC) 204 : 2023 INSC 259

Cause of action for redemption suit is successive, second suit by mortgagor not barred by default dismissal of first suit. Ganesh Prasad v. Rajeshwar Prasad, 2023 LiveLaw (SC) 189 : 2023 INSC 228

Pleadings - A entitled to take alternative pleas in support of its case - plaintiff is entitled to plead even inconsistent pleas while seeking alternative reliefs. (Para 41, 42) Ganesh Prasad v. Rajeshwar Prasad, 2023 LiveLaw (SC) 189 : 2023 INSC 228

Section 24 CPC power can be invoked by the common High Court for two or more states even for inter state transfer of suits. Shah Newaz Khan v. State of Nagaland, 2023 LiveLaw (SC) 146 : AIR 2023 SC 1338 : 2023 INSC 176

CPC Order 41 Rule 23A - Appellate Court can't remand suit for de novo trial merely because a particular evidence has not been adduced. Sirajudheen v. Zeenath, 2023 LiveLaw (SC) 145 : 2023 INSC 173

Remand order prolongs & delays litigation: Supreme Court explains scope of appellate court's power to remand. Arvind Kumar Jaiswal v. Devendra Prasad Jaiswal Varun, 2023 LiveLaw (SC) 112

Ouster of civil court's jurisdiction won't have retrospective effect to annul a decree validly passed by civil court. Ananta Chandrakant Bhonsule v. Trivikram Atmaram Korjuenkar, 2023 LiveLaw (SC) 109

It is settled law that ouster of jurisdiction of civil court can be expressed or implied, but it cannot have retrospective effect annulling a decree validly passed by the civil court. Ananta Chandrakant Bhonsule v. Trivikram Atmaram Korjuenkar, 2023 LiveLaw (SC) 109

Order XXI Rule 84 CPC - Deposit of 25% of amount by auction purchaser mandatory; balance amount to be paid within fifteen days. Gas Point Petroleum India Ltd. v. Rajendra Marothi, 2023 LiveLaw (SC) 89 : AIR 2023 SC 936 : (2023) 6 SCC 391 : (2023) 1 SCR 433 : 2023 INSC 119

Suit for recovery of possession - In a case where the owner of the land filed suit for recovery of possession of his land from the encroacher and once he establishes his title, merely because some structures are erected by the opposite party ignoring the objection, that too without any bona fide belief, denying the relief of recovery of possession would tantamount to allowing a trespasser/encroacher to purchase another man's property against that man's will. (Para 21) Baini Prasad v. Durga Devi, 2023 LiveLaw (SC) 78 : AIR 2023 SC 894 : 2023 INSC 95

Order XLI Rule 5 CPC - Mere filing of appeal would not operate as a stay of decree. Sanjiv Kumar Singh v. State of Bihar, 2023 LiveLaw (SC) 63

Decree of possession can't be passed in favour of plaintiff merely because defendants could not fully establish their title. Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 LiveLaw (SC) 19 : AIR 2023 SC 379 : (2023) 1 SCR 355 : 2023 INSC 8

Civil Service (Pension) Rules, 1992 (Odisha)

Civil Service (Pension) Rules, 1992 (Odisha); Rule 7 - Right of Government to Withhold or Withdraw Pension - In reference to the officer/employee, who stood retired from service, inquiry indeed can be initiated against him/her, provided sanction is obtained from the Government and must be during the period of 4 years before such institution and the Explanation added to the scheme of Rules makes it abundantly clear that proceedings shall be deemed to be instituted on the date on which the statement of charges are issued to the Government servant/pensioner, as the case may be. Suchismita Mishra v. High Court of Orissa, 2023 LiveLaw (SC) 477

Coal

New Coal Distribution Policy (NCDP) - 'Change in Law' Relief - Policy of Inter-Plant Transfer (IPT) of coal by Coal India Ltd. (CIL) a “change in law” event - Finding of APTEL that the communication dated 19th June 2013 permitting IPT is not a 'Change in Law' would not be sustainable. Uttar Haryana Bijli Vitran Nigam Ltd. v. Adani Power (Mundra) Ltd; 2023 LiveLaw (SC) 339 : 2023 INSC 403

State government can be 'person interested' in getting compensation under the Coal Bearing Areas (Acquisition and Development) Act. Mahanadi Coalfields Ltd. v. State of Odisha, 2023 LiveLaw (SC) 51 : AIR 2023 SC 668 : (2023) 4 SCC 343 : (2023) 1 SCR 1055 : 2023 INSC 63

Coal Bearing Areas (Acquisition and Development) Act, 1957

Coal Bearing Areas (Acquisition and Development) Act, 1957; Section 2(d), 11 - The State Government being the original owner can be said to be deemed lessor - The State Government can be said to be the 'person interested' in getting the compensation. (Para 5) Mahanadi Coalfields Ltd. v. State of Odisha, 2023 LiveLaw (SC) 51 : AIR 2023 SC 668 : (2023) 4 SCC 343 : (2023) 1 SCR 1055 : 2023 INSC 63

Coal Bearing Areas (Acquisition and Development) Act, 1957; Section 18(a) - The compensation/rental payable with respect to the lands by the lessee/deemed lessee is altogether different than the royalty. Royalty is for extraction of minerals in the lands in question - The amount of royalty cannot be mixed with the compensation/loss caused to the State Government due to loss of land and surface land rent as the State Government is entitled for the adequate compensation. (Para 5.1, 6) Mahanadi Coalfields Ltd. v. State of Odisha, 2023 LiveLaw (SC) 51 : AIR 2023 SC 668 : (2023) 4 SCC 343 : (2023) 1 SCR 1055 : 2023 INSC 63

Code of Civil Procedure, 1908

Section 10 - Stay of Suit

Code of Civil Procedure, 1908; Section 10 - Stay of Suit - By virtue of Section 10 CPC, a Court is prohibited from proceeding with trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit, of course, subject to other conditions mentioned therein. The object of the prohibition contained in Section 10 CPC is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits and to avoid inconsistent findings. However, this rule of procedure is held not affecting the jurisdiction of the Court to entertain and deal with the latter suit and does not create a bar to the institution of the suit. The Courts have also consistently held that Section 10 CPC does not create a bar to the passing of interlocutory orders including those of injunction. (Para 17) State of Meghalaya v. Union of India, 2023 LiveLaw (SC) 427 : 2023 INSC 522

Section 11 - Res Judicata

Code of Civil Procedure, 1908; Section 11 - Res judicata - An order closing the proceedings is not final decision of the suit within the meaning of Order 9 Rule 8 and Order 17 Rule 3 resply of the CPC - will not operate as res judiciata. (Para 55) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC 317

Code of Civil Procedure, 1908; Section 11 - Res Judiciata - The general principle of res judicata under Section 11 of the CPC contain rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality. Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff's appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit. (Para 34) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC 317

Code of Civil Procedure 1908; Section 11 - Res Judicata - Guiding principles summarized. (Para 33) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC 317

Section 24 - General power of transfer and withdrawal

Code of Civil Procedure, 1908; Section 24, 25 - The power under section 24 of the CPC can be exercised by the High Court even for inter-State transfer of a suit, appeal or other proceeding, if it is the common High Court for two or more States under Article 231 of the Constitution and both the Civil Courts (transferor and transferee) are subordinate to it - Section 25 applies to inter-State transfer of a suit, appeal or other proceeding where both States have a High Court in terms of Article 214 of the Constitution and not to a transfer where both States have a common High Court under Article 231 thereof. (Para 48) Shah Newaz Khan v. State of Nagaland, 2023 LiveLaw (SC) 146 : AIR 2023 SC 1338 : 2023 INSC 176

Section 33 - Judgment and decree

Code of Civil Procedure, 1908; Section 33, Order XX Rule 4(2), 5; Order XLI Rule 23, 23A, 24 and 25 - Remand - High Court passed order of remand observing that the judgment of the trial court was not written as per the mandate of Section 33 and Rule 4(2) and 5 of Order XX of the Code, as the discussion and reasoning on certain aspects was not detailed and elaborate - Allowing appeal, the Supreme Court observed: This is not a case where the evidence is not adduced and on record. In fact, the first portion of the judgment of the High Court elaborately records the contention of the parties and the facts and evidence relied by the parties - First appeal restored before High Court. Arvind Kumar Jaiswal v. Devendra Prasad Jaiswal Varun, 2023 LiveLaw (SC) 112

Section 47 - Questions to be determined by the Court executing decree

Code of Civil Procedure, 1908; Section 47 - Questions to be determined by the Court executing decree - Section 47 of CPC confers exclusive jurisdiction on the Executing Court to prevent unnecessary litigation and to achieve speedy disposal of the questions arising in relation to the execution, discharge or satisfaction of the decree. Jini Dhanrajgir v. Shibu Mathew, 2023 LiveLaw (SC) 450 : AIR 2023 SC 2567 : 2023 INSC 544

Section 96 - Appeal from original decree

Code of Civil Procedure, 1908; Section 96 - Limitation Act, 1963; Section 3, 5 - An appeal has to be filed within the stipulated period, prescribed under the law. Belated appeals can only be condoned, when sufficient reason is shown before the court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach while condoning the delay, and explanation of each day's delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay. (Para 5) Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 : AIR 2023 SC 698 : (2023) 1 SCR 449 : 2023 INSC 90

Code of Civil Procedure, 1908; Section 96, 149 - Limitation Act, 1963; Section 3, 5 - Being short of sufficient funds to pay court fee is not a reason to condone delay in filing appeal - In such a scenario, an appeal can be filed in terms of Section 149 CPC and thereafter the defects can be removed by paying deficit court fees. (Para 5-10) Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 : AIR 2023 SC 698 : (2023) 1 SCR 449 : 2023 INSC 90

Section 149 - Power to make up deficiency of court-fees

Code of Civil Procedure, 1908; Section 149 - Court Fees Act 1870; Section 4 - Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act - In terms of Section 4, an appeal cannot be filed before a High Court without court fee, if the same is prescribed - But an appeal can be filed in terms of Section 149 CPC and thereafter the defects can be removed by paying deficit court fees. Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 : AIR 2023 SC 698 : (2023) 1 SCR 449 : 2023 INSC 90

Order 6 Rule 4 - Particulars to be given where necessary

Code of Civil Procedure, 1908; Order VI Rule 4, Order XXI Rules 97 to 101 - Hyderabad Jagir Abolition Regulation, 1358 - The Supreme Court has upheld the decision of the Telangana High Court, upholding the title of successors of Ryot Cultivators over the Paigah lands in Hydernagar, Telangana, who had obtained title to the said lands from their predecessors. The court dismissed the claim of title raised by rival claimants/appellants, including M/s Trinity Infraventures Ltd, on the ground that it was a Mathruka property of the late Nawab Khurshid Jah, who was granted a Paigah by the Nizam of Hyderabad. The Apex Court further ruled that no party to a suit for partition, even by way of compromise, can acquire any title to any specific item of property or any particular portion of a specific property, if such a compromise is struck only with a few parties to the suit. Trinity Infraventures Ltd. v. M.S. Murthy, 2023 LiveLaw (SC) 488 : 2023 INSC 581

Order 6 Rule 17 - Amendment of Pleadings.

Code of Civil Procedure 1908; Order VI Rule 17 - In dealing with prayers for amendment of the pleadings the Courts should avoid hyper technical approach. But at the same time, we should keep reminded of the position that the same cannot be granted on the mere request through an application for amendment of the written statement, especially at the appellate stage. (Para 14) Shivshankara v. H.P. Vedavyasa Char, 2023 LiveLaw (SC) 261 : AIR 2023 SC 1780 : (2023) 6 SCR 359 : 2023 INSC 318

Code of Civil Procedure, 1908; Order VI Rule 17 - Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. (Para 38) Ganesh Prasad v. Rajeshwar Prasad, 2023 LiveLaw (SC) 189 : 2023 INSC 228

Order 7 Rule 11 - Rejection of plaint

Code of Civil Procedure, 1908; Order VII Rule 11 - A plaint which falls within the teeth of the conditions laid down under Rule 11 of Order VII CPC is liable to be rejected at the threshold for which the plaint allegations alone are required to be considered and nothing else. (Para 12) ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378 : AIR 2023 SC 2140 : 2023 INSC 471

Code of Civil Procedure, 1908; Order VII Rule 11 - Rejection of Plaint - While deciding the application under Order VII Rule XI, mainly the averments in the plaint only are required to be considered and not the averments in the written statement - Plaint is ought to be rejected when it is vexatious, illusory cause of action and barred by limitation and it is a clear case of clever drafting. (Para 5-8) Ramisetty Venkatanna v. Nasyam Jamal Saheb, 2023 LiveLaw (SC) 372 : 2023 INSC 458

Code of Civil Procedure, 1908; Order VII Rule 11 - For dealing with an application under Rule 11 of Order VII of CPC, only the averments made in the plaint and the documents produced along with the plaint are required to be seen. The defence of the defendants cannot be even looked into. When the ground pleaded for rejection of the plaint is the absence of cause of action, the Court has to examine the plaint and see whether any cause of action has been disclosed in the plaint - Merely because there were some inconsistent averments in the plaint, that was not sufficient to come to a conclusion that the cause of action was not disclosed in the plaint. The question was whether the plaint discloses the cause of action. (Para 6-9) G. Nagaraj v. B.P. Mruthunjayanna, 2023 LiveLaw (SC) 311

Order 8 Rule 6A - Counter-claim by defendant

Code of Civil Procedure, 1908; Order VIII Rule 6A - An inter-se dispute on the validity of the sale deed executed between the defendants in respect of the suit land, cannot be considered in the suit for possession instituted by the plaintiff on the basis of a registered sale deed executed in its favour, as it would amount to adjudication of a right or a claim by way of counter-claim by one defendant against his co-defendant, which cannot be permitted by virtue of Order VIII Rule 6A of CPC. Damodhar Narayan Sawale v. Shri Tejrao Bajirao Mhaske, 2023 LiveLaw (SC) 404 : 2023 INSC 491

Code of Civil Procedure, 1908; Order VIII Rule 6–A (4) - A counter-claim is a virtually a plaint and an independent suit. (Para 12) ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw (SC) 378 : AIR 2023 SC 2140 : 2023 INSC 471

Order 9 Rule 9 - Decree against plaintiff by default bars fresh suit.

Code of Civil Procedure, 1908; Order IX Rule 9 - If the right of redemption is not extinguished, the provision like Order IX Rule 9 of the CPC will not debar the mortgagor from filing a second suit because as in a partition suit, the cause of action in a redemption suit is a recurring one. The cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time barred, is a different one. (Para 61, 62) Ganesh Prasad v. Rajeshwar Prasad, 2023 LiveLaw (SC) 189 : 2023 INSC 228

Code of Civil Procedure, 1908; Order 9 Rule 9 - It was not the intention of the Legislature to bar the subsequent suits between the parties and the same was evident by the qualifying words, “same cause of action”. Therefore, everything depends upon the cause of action and in case the subsequent cause of action arose from a totally different bunch of facts, such suit cannot be axed by taking shelter to the provision of Order IX Rule 9 of CPC. (Para 52) Ganesh Prasad v. Rajeshwar Prasad, 2023 LiveLaw (SC) 189 : 2023 INSC 228

Order 17 Rule 3 - Court may proceed notwithstanding either party fails to produce evidence, etc.

Code of Civil Procedure, 1908; Order 17 Rule 3 - The power conferred on Courts under Rule 3 of Order 17 of the CPC to decide the suit on the merits for the default of a party is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in exceptional cases. Physical presence without preparedness to co-operate for anything connected with the progress of the case serves no useful purpose in deciding the suit on the merits and it is worse than absence. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Sometimes the decision in such cases. (Para 52) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266 : 2023 INSC 317

Order 20 Rule 18 - Decree in suit for partition of property or separate possession of a share therein

Code of Civil Procedure, 1908; Order XX Rule 18 - Punjab Land Revenue Act, 1887; Section 121 - Instrument of Partition - For the purpose of interpreting Section 121 of the Land Revenue Act, the Court can safely draw an analogy from the provisions contained in Order XX, Rule 18 C.P.C. which pertain to the procedure to be followed on the passing of the decree for the partition of the property. (Para 28) Jhabbar Singh v. Jagtar Singh, 2023 LiveLaw (SC) 324 : AIR 2023 SC 2074 : 2023 INSC 373

Code of Civil Procedure, 1908; Order XX Rule 18 - Punjab Land Revenue Act, 1887; Section 121 - When a decision is taken by the Revenue Officer under Section 118 on the question as to the property to be divided and the mode of partition, the rights and status of the parties stand decided and the partition is deemed to have completed. At this stage, such decision is required to be treated as the “decree”. (Para 30) Jhabbar Singh v. Jagtar Singh, 2023 LiveLaw (SC) 324 : AIR 2023 SC 2074 : 2023 INSC 373

Order 21 - Execution of Decrees and Orders

Code of Civil Procedure, 1908; Order XXI - Liability to pay interest on money deposited by judgment debtor-f the amount is deposited, or paid to the decree holder or person entitled to it, the person entitled to the amount cannot later seek interest on it-This is a rule of prudence, inasmuch as the debtor, or person required to pay or refund the amount, is under an obligation to ensure that the amount payable is placed at the disposal of the person entitled to receive it. Once that is complete (in the form of payment, through different modes, including tendering a Banker's Cheque, or Pay Order or Demand Draft, all of which require the account holder / debtor to pay the bank, which would then issue the instrument) the tender, or 'payment' is complete. (Para 31) K.L. Suneja v. Manjeet Kaur Monga, 2023 LiveLaw (SC) 68 : AIR 2023 SC 705 : 2023 INSC 89

Order 21 Rule 84 - Deposit by purchaser and re-sale on default

Code of Civil Procedure, 1908; Order XXI Rule 84, 85 - The deposit of 25% of the amount by the purchaser other than the decree-holder is mandatory and the full amount of the purchase money must be paid within fifteen days from the date of the sale - If the payment is not made within the period of fifteen days, the Court has the discretion to forfeit the deposit, and there the discretion ends but the obligation of the Court to resell the property is imperative - The provisions of the rules requiring the deposit of 25 per cent of the purchase money immediately, on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon noncompliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 per cent of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. (Para 8-9) Gas Point Petroleum India Ltd. v. Rajendra Marothi, 2023 LiveLaw (SC) 89 : AIR 2023 SC 936 : (2023) 6 SCC 391 : (2023) 1 SCR 433 : 2023 INSC 119

Order 21 Rule 102 - Rules not applicable to transferee pendente lite

Code of Civil Procedure, 1908; Order XXI Rule 102 - the Executing Court would have to determine upon evidence whether the transfer of immovable property which was made post dismissal of suit, was made after institution of appeal/further litigation or not, in order to attract the principle of lis pendens. Jini Dhanrajgir v. Shibu Mathew, 2023 LiveLaw (SC) 450 : AIR 2023 SC 2567 : 2023 INSC 544

Order 22 Rule 2 - Procedure where one of several plaintiffs or defendants dies and right to sue survives.

Code of Civil Procedure, 1908; Order XXII Rule 2 - Suit can't be held to be abated in the event of death of one of the defendants, when the estate/interest was being fully and substantially represented in the suit jointly by the other defendants along with deceased defendant and when they are also his legal representatives - In such cases, by reason of non-impleadment of all other legal heirs consequential to the death of the said defendant, the defendants could not be heard to contend that the suit should stand abated on account of non-substitution of all the other legal representatives of the deceased defendant. (Para 36) Shivshankara v. H.P. Vedavyasa Char, 2023 LiveLaw (SC) 261 : AIR 2023 SC 1780 : (2023) 6 SCR 359 : 2023 INSC 318

Order 22 Rule 3 – Procedure in case of death of one of several plaintiffs or of sole plaintiff.

Code of Civil Procedure, 1908; Order XXII Rule 3 – Advocate appearing for the Defendant could have signed the compromise petition without an express consent. It is an imperative duty of the Court to ascertain the genuineness and lawfulness of the compromise deed. (Para 100) Prasanta Kumar Sahoo v. Charulata Sahu, 2023 LiveLaw (SC) 262 : 2023 INSC 319

Code of Civil Procedure, 1908; Order XXII Rule 3 - When a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them-. In a suit for partition of joint property, a decree by consent amongst some only of the parties cannot be maintained. (Para 93, 94) Prasanta Kumar Sahoo v. Charulata Sahu, 2023 LiveLaw (SC) 262 : 2023 INSC 319

Order 41 Rule 5 - Stay by Appellate Court. Stay by Court which passed the decree.

Code of Civil Procedure, 1908; Order 41 Rule 5 - Unless the appeal is listed and there is an interim order, the mere filing of the appeal would not operate as a stay. Sanjiv Kumar Singh v. State of Bihar, 2023 LiveLaw (SC) 63

Order 41 Rule 23 - Remand of case by Appellate Court.

Code of Civil Procedure, 1908; Order 41 Rule 23 - the scope of remand in terms of Rule 23 of Order XLI CPC is extremely limited. (Para 11.2) Sirajudheen v. Zeenath, 2023 LiveLaw (SC) 145 : 2023 INSC 173

Code of Civil Procedure, 1908; Order 41 Rule 23 - There can be no doubt with respect to the settled position that the Court to which the case is remanded has to comply with the order of remand and acting contrary to the order of remand is contrary to law. In other words, an order of remand has to be followed in its true spirit. (Para 7) Shivshankara v. H.P. Vedavyasa Char, 2023 LiveLaw (SC) 261 : AIR 2023 SC 1780 : (2023) 6 SCR 359 : 2023 INSC 318

Code of Civil Procedure, 1908; Order 41 Rule 23, 23A, 24 and 25 - Remand - An order of remand prolongs and delays the litigation and hence, should not be passed unless the appellate court finds that a re-trial is required, or the evidence on record is not sufficient to dispose of the matter for reasons like lack of adequate opportunity of leading evidence to a party, where there had been no real trial of the dispute or there is no complete or effectual adjudication of the proceedings, and the party complaining has suffered material prejudice on that account. Where evidence has already been adduced and a decision can be rendered on appreciation of such evidence, an order of remand should not be passed remitting the matter to the lower court, even if the lower court has omitted to frame issue(s) and/or has failed to determine any question of fact, which, in the opinion of the appellate court, is essential. The first appellate court, if required, can also direct the trial court to record evidence and finding on a particular aspect/issue in terms of Rule 25 to Order XLI, which then can be taken on record for deciding the case by the appellate court. Arvind Kumar Jaiswal v. Devendra Prasad Jaiswal Varun, 2023 LiveLaw (SC) 112

Order 41 Rule 23A - Remand in other cases

Code of Civil Procedure 1908; Order 41 Rule 23A - Necessary requirement for remand under Rule 23A is that the decree is reversed in appeal and a re-trial is considered necessary - the reversal has to be based on cogent reasons and for that matter, adverting to and dealing with the reasons that had prevailed with the Trial Court remains a sine qua non. (Para 11.2) Sirajudheen v. Zeenath, 2023 LiveLaw (SC) 145 : 2023 INSC 173

Order 47 Rule 1 - Application for review of judgment.

Code of Civil Procedure, 1908; Order 47 Rule 1 - Is the subsequent overruling of a precedent relied on in a judgment a ground to review it ? - Supreme Court 2-judge bench delivers split verdict - Justice MR Shah holds subsequent overruling is a ground to review - Justice BV Nagarathna disagrees. Govt. of NCT of Delhi v. K.L. Rathi Steels Ltd; 2023 LiveLaw (SC) 204 : 2023 INSC 259

Code of Criminal Procedure, 1973

Code of Criminal Procedure, 1973 - Difference in the power of Police to register and investigate an FIR under Section 154(1) read with 157 of the Code, and the Magistrate's direction to register an FIR under Section 156(3) of the Code. Power of the Magistrate to direct registration of an FIR under Section 156(3) in contrast with post-cognizance stage power under Section 202 of the Code – Explained. (Para 23 -38) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Code of Criminal Procedure, 1973 - Inherent power of the High Court under the Code to quash the FIR – Explained. (Para 19-22) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Code of Criminal Procedure, 1973 - Principles in respect of the exercise of power under Section 482 Cr.P.C. – Explained. Peethambaran v. State of Kerala, 2023 LiveLaw (SC) 402 : 2023 INSC 481

Code of Criminal Procedure, 1973 - Section 173(3) read with Section 158 does not permit the Secretary (Home) to order for further investigation or reinvestigation by another agency - The order passed by the Secretary (Home) transferring the investigation / ordering further investigation by another agency and that too, on the basis of the application / complaint submitted by mother of the accused is unknown to law - In any case, as it is a case of reinvestigation, the same is not permissible and that too by another agency without the prior permission of the learned Magistrate even while exercising the powers under Section 173(8) of the Cr.P.C. (Para 7.1, 7.3) Bohatie Devi v. State of Uttar Pradesh, 2023 LiveLaw (SC) 376 : 2023 INSC 465

Code of Criminal Procedure, 1973 - The power under the Code to investigate generally consists of following steps: (a) proceeding to the spot; (b) ascertainment of facts and circumstances of the case; (c) discovery and arrest of the suspected offender; (d) collection of evidence relating to commission of offence, which may consist of examination of various persons, including the person accused, and reduction of the statement into writing if the officer thinks fit; (e) the search of places of seizure of things considered necessary for investigation and to be produced for trial; and (f) formation of opinion as to whether on the material collected there is a case to place the accused before the Magistrate for trial and if so, taking the necessary steps by filing a chargesheet under Section 173. (Para 12) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Code of Criminal Procedure, 1973 - No accused can be permitted to play with the investigation and/or the court's process. No accused can be permitted to frustrate the judicial process by his conduct. It cannot be disputed that the right of custodial interrogation/ investigation is also a very important right in favour of the investigating agency to unearth the truth, which the accused has purposely and successfully tried to frustrate. Therefore, by not permitting the CBI to have the police custody interrogation for the remainder period of seven days, it will be giving a premium to an accused who has been successful in frustrating the judicial process. (Para 8) Central Bureau of Investigation v. Vikas Mishra @ Vikash Mishra, 2023 LiveLaw (SC) 283 : AIR 2023 SC 1808 : (2023) 6 SCC 49 : 2023 INSC 345

Code of Criminal Procedure, 1973 - Powers of the Appellate Court while dealing with the appeal against an order of acquittal - General principles discussed. (Para 14) Siju Kurian v. State of Karnataka, 2023 LiveLaw (SC) 338 : AIR 2023 SC 2239 : 2023 INSC 378

Code of Criminal Procedure, 1973 - Supreme Court directs Police to not file closure report in cases where proceedings/FIR have been quashed by the High Court - In case of quashing of the criminal proceedings/FIRs by the High Court, there is no question of preparing/filing a closure report under Section 173 Cr.P.C. State of Uttarakhand v. Umesh Kumar Sharma, 2023 LiveLaw (SC) 335

Code of Criminal Procedure, 1973 – Remand - There seems to be a practice followed by Courts to remand the accused to custody, the moment they appear in response to the summoning order. The correctness of such a practice has to be tested in an appropriate case. (Para 10) Mahdoom Bava v. Central Bureau of Investigation, 2023 LiveLaw (SC) 218 : AIR 2023 SC 1570 : 2023 INSC 263

Code of Criminal Procedure, 1973 - High Courts should endeavour to ensure that all basic essentials (i.e. FIR No., Date, the concerned police station and the offences allegedly committed etc.) are duly recorded or reflected in the format of the bail orders. Ravish Kumar v. State of Bihar, 2023 LiveLaw (SC) 206

Code of Criminal Procedure, 1973 - Prevention of Money-laundering Act, 2002; Section 46(1), 65, 71 - The provisions of the Cr.P.C. are applicable to all proceedings under the Act including proceedings before the Special Court, except to the extent they are specifically excluded. Hence, Section 71 of the PMLA providing an overriding effect, has to be construed in tune with Section 46(1) and Section 65. (Para 28-29) Rana Ayyub v. Directorate of Enforcement, 2023 LiveLaw (SC) 86 : AIR 2023 SC 875 : (2023) 4 SCC 357 : 2023 INSC 101

Chapter XII - Information to the Police and their Powers to Investigate

Code of Criminal Procedure Code, 1973 - Chapter XII - The Investigating Officer is the person tasked with determining a direction, the pace, manner and method of the investigation. (Para 38 - 43) Maghavendra Pratap Singh @ Pankaj Singh v. State of Chhattisgarh, 2023 LiveLaw (SC) 358 : 2023 INSC 415

Code of Criminal Procedure Code, 1973 - Chapter XII - Whether the Investigating Officer had complied with the duties and responsibilities cast upon him - Held, the Investigating Officer did not examine the owner of the house; (b) did not enter his movement in the case diary; (c) did not record that he took the accused for effecting the recovery; (d) was not able to describe clearly the area from where the recovery was effected; (e) admits both the independent witnesses, who do not belong to the area from where the recoveries were effected; (f) does not associate any of the residents of the area for conducting the search; (g) does not examine any of the residents for carrying out any further investigation and (h) Most importantly he admits that both the memo of arrest as also the recovery not to have been prepared by him or bearing his signature and the same too, have many corrections and over­writing, thus reducing the correctness and authenticity of this document. Furthermore, he is not clear about the description of the articles recovered. The Investigating Officer did not meet the obligations he was under. Numerous infirmities affected the conduct of the Investigation Officer calling into question, credibly, the investigation conducted by him or upon his directions. (Para 35) Maghavendra Pratap Singh @ Pankaj Singh v. State of Chhattisgarh, 2023 LiveLaw (SC) 358 : 2023 INSC 415

Chapter XXV - Provisions as to accused persons of Unsound Mind

Code of Criminal Procedure, 1973; Chapter XXV; Sections 328 to 339 - Though procedural in nature, Chapter XXV becomes substantive when it deals with an accused person of unsound mind - There is not even a need for an application under Section 329 of Cr.P.C. in finding out as to whether an accused would be sound enough to stand a trial, rather it is the mandatory duty of the Court -The whole idea under the provisions discussed is to facilitate a person of unsound mind to stand trial, not only because of his reasoning capacity, but also to treat him as the one who is having a disability. The role of the Court is to find the remedial measures and do complete justice. (Para 15-16) Prakash Nayi @ Sen v. State of Goa, 2023 LiveLaw (SC) 71 : (2023) 5 SCC 673 : (2023) 1 SCR 823 : 2023 INSC 24

Section 41 - When police may arrest without warrant

Code of Criminal Procedure, 1973; Section 41, 154 - To strike a balance, distinction is drawn between power of arrest of an accused person under Section 41 and registration of an FIR under Section 154 of the Code. While registration of an FIR is mandatory, the arrest of the accused on registration of the FIR is not. FIR is registered on the basis of information without any qualification like credible, reasonable or true information. Reasonableness or credibility of information is not a condition precedent for registration of the FIR. However, for making arrest in terms of Section 41(1)(b) or (g), the legal requirements and mandate is reflected in the expression 'reasonable complaint' or 'credible information'. (Para 15) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Section 102 - Power of police officer to seize certain property

Code of Criminal Procedure, 1973; Section 102 - Company's bank account cannot be frozen for criminal investigation against an unrelated party. Jermyn Capital LLC Dubai v. CBI, 2023 LiveLaw (SC) 412 : 2023 INSC 509

Section 173 - Report of police officer on completion of investigation

Code of Criminal Procedure, 1973; Section 173 (8) - Victim has a fundamental right of fair investigation and fair trial. Therefore, mere filing of the chargesheet and framing of the charges cannot be an impediment in ordering further investigation / re-investigation / de novo investigation, if the facts so warrant. (Para 12.3) Anant Thanur Karmuse v. State of Maharashtra, 2023 LiveLaw (SC) 136 : (2023) 5 SCC 802 : 2023 INSC 168

Code of Criminal Procedure 1973 - Sections 173, 207 - Direction to publicly upload chargesheets against the scheme of Cr.P.C. - If all the chargesheets and relevant documents produced along with the chargesheets are put on the public domain or on the websites of the State Governments it will be contrary to the Scheme of the Criminal Procedure Code and it may as such violate the rights of the accused as well as the victim and/or even the investigating agency. Putting the FIR on the website cannot be equated with putting the chargesheets along with the relevant documents on the public domain and on the websites of the State Governments. (Para 4.5) Saurav Das v. Union of India, 2023 LiveLaw (SC) 52 : AIR 2023 SC 615 : 2023 INSC 76

Section 154 - Information in cognizable cases

Code of Criminal Procedure, 1973; Section 154 - Registration of an FIR - Mandatory nature of Section 154(1) of the Code – Explained. (Para 14-18) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Code of Criminal Procedure, 1973; Section 154 and 157 - there is a distinction between Section 154 and 157 as the latter provision postulates a higher requirement than under Section 154 of the Code. Under Section 157(1) of the Code, a Police officer can foreclose the investigation if it appears to him that there is no sufficient ground to investigate. The requirement of Section 157(1) for the Police officer to start investigation is that he has “reason to suspect the commission of an offence”. Therefore, the Police officer is not liable to launch investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence. When the Police officer forecloses investigation in terms of clauses (a) and (b) of the proviso to Section 157(1), he must submit a report to the Magistrate. Here, the Magistrate can direct the Police to investigate, or if he thinks fit, hold an inquiry. Where a Police officer, in a given case, proceeds to investigate the matter, then he files the final report under Section 173 of the Code. The noticeable feature of the scheme is that the Magistrate is kept in the picture at all stages of investigation, but he is not authorised to interfere with the actual investigation or to direct the Police how the investigation should be conducted. (Para 16) Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Code of Criminal Procedure 1973; Section 154 - Principles of natural justice are not applicable at the stage of reporting a criminal offence - Code of Criminal Procedure, 1973 does not provide for right of hearing before the registration of an FIR. (Para 30) State Bank of India v. Rajesh Agarwal, 2023 LiveLaw (SC) 243 : AIR 2023 SC 1859 : (2023) 6 SCC 1 : 2023 INSC 303

Code of Criminal Procedure, 1973; Section 154 - Delay in registering FIR - The immediate lodging of an FIR removes suspicion with regard to over implication of number of persons, particularly when the case involved a fight between two groups. When the parties are at loggerheads, the immediate lodging of the FIR provides credence to the prosecution case. (Para 31) Nand Lal v. State of Chhattisgarh, 2023 LiveLaw (SC) 186 : AIR 2023 SC 1599 : [2023] 2 SCR 276 : 2023 INSC 224

Section 156 - Police officer's power to investigate cognizable case

Code of Criminal Procedure, 1973; Section 156(3) - Proposed accused has right to be heard in revision filed under Section 401 Cr.P.C. against dismissal of petition under Section 156(3) Cr. P.C. Santhakumari v. State of Tamil Nadu, 2023 LiveLaw (SC) 465

Code of Criminal Procedure 1973; Section 156(3) - In order to cause registration of an F.I.R. and consequential investigation based on the same the petition filed under Section 156(3), Cr.P.C., must satisfy the essential ingredients to attract the alleged offences. In other words, if such allegations in the petition are vague and are not specific with respect to the alleged offences it cannot lead to an order for registration of an F.I.R. and investigation on the accusation of commission of the offences alleged. (Para 10) Usha Chakraborty v. State of West Bengal, 2023 LiveLaw (SC) 67 : AIR 2023 SC 688 : 2023 INSC 86

Code of Criminal Procedure 1973; Section 156(3) - Supreme Court quashes criminal proceedings after noting that the attempt was to give a cloak of criminal offence to a civil dispute. The Court noted that the application filed under Section 156(3) Cr.P.C. were vague and did not attract the essential ingredients of the offences. Also, the pendency of a civil suit on the issue was suppressed in the application. Usha Chakraborty v. State of West Bengal, 2023 LiveLaw (SC) 67 : AIR 2023 SC 688 : 2023 INSC 86

Section 164 - Recording of confessions and statements

Code of Criminal Procedure, 1973; Section 164 - Non-examination of the statement under section 164 Cr.P.C. also has no relevance or bearing to the findings and conclusions arrived at by the courts below. It was for the Investigating Officer to have got the statement under section 164 Cr.P.C. recorded. If he did not think it necessary in his wisdom, it cannot have any bearing on the testimony of PW-1 and the other material evidence led during trial. (Para 22) Ajai @ Ajju v. State of Uttar Pradesh, 2023 LiveLaw (SC) 110 : AIR 2023 SC 996 : 2023 INSC 127

Section 167 - Procedure when investigation cannot be completed in twenty-four hours

Code of Criminal Procedure, 1973; Section 167(2) - Default Bail - If NIA as well as the State investigating agency they want to seek extension of time for investigation, they must be careful that such extension is not prayed for at the last moment - The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the court. However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, or a report seeking extension of time is preferred before the Magistrate or any other competent court, the right to default bail would be extinguished. The court would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377 : 2023 INSC 472

Code of Criminal Procedure, 1973; Section 167(2) - Filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the CrPC and that an accused cannot claim any indefeasible right of being released on statutory / default bail under Section 167(2) of the CrPC on the ground that cognizance has not been taken before the expiry of the statutory time period to file the chargesheet - Grant of sanction is nowhere contemplated under Section 167 of the CrPC - Once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order. (Para 44, 63) Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377 : 2023 INSC 472

Code of Criminal Procedure, 1973; Section 167(2), 193 - National Investigation Agency Act, 2008; Section 16 - Error on the part of the investigating agency in filing chargesheet first before the Court of Magistrate has nothing to do with the right of the accused to seek statutory / default bail under Section 167(2) of the CrPC. The committal proceedings are not warranted, when it comes to prosecution under the UAPA by the NIA by virtue of Section 16 of the NIA Act. This is because the Special Court acts as one of the original jurisdictions. By virtue of Section 16 of the NIA Act, the Court need not follow the requirements of Section 193 of the CrPC. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377 : 2023 INSC 472

Code of Criminal Procedure, 1973; Section 167(2), Section 173 - We find no merit in the principal argument canvassed on behalf of the appellants that a chargesheet filed without sanction is an incomplete chargesheet which could be termed as not in consonance with sub section (5) of Section 173 of the CrPC - Once a final report has been filed with all the documents on which the prosecution proposes to rely, the investigation shall be deemed to have been completed - Once a final report has been filed, that is the proof of completion of investigation and if final report is filed within the period of 180 days or 90 days or 60 days from the initial date of remand of accused concerned, he cannot claim that a right has accrued to him to be released on bail for want of filing of sanction order. Judgebir Singh @ Jasbir Singh @ Jasbir v. National Investigation Agency, 2023 LiveLaw (SC) 377 : 2023 INSC 472

Code of Criminal Procedure, 1973; Section 167 - Filing incomplete chargesheet without completing investigation would not extinguish the right of accused to get default bail. Ritu Chhabaria v. Union of India, 2023 LiveLaw (SC) 352 : 2023 INSC 436

Code of Criminal Procedure, 1973; Section 167(2) - Accused cannot claim the benefit of default bail, when he did not challenge the first extension of time granted for investigation and the second extension was granted in his presence and when the chargesheet was subsequently filed within the period of extension. Qamar Ghani Usmani v. State of Gujarat, 2023 LiveLaw (SC) 297 : AIR 2023 SC 1901 : (2023) 2 SCR 824 : 2023 INSC 337

Code of Criminal Procedure, 1973; Section 167(2) - It is true that in the case of Central Bureau of Investigation v. Anupam J. Kulkarni, reported in (1992) 3 SCC 141, this Court observed that there cannot be any police custody beyond 15 days from the date of arrest. In our opinion, the view taken by this Court in the case of Anupam J. Kulkarni (supra) requires re-consideration. (Para 7, 7.1) Central Bureau of Investigation v. Vikas Mishra @ Vikash Mishra, 2023 LiveLaw (SC) 283 : AIR 2023 SC 1808 : (2023) 6 SCC 49 : 2023 INSC 345

Code of Criminal Procedure, 1973; Section 167 - The day of remand is to be included for considering a claim for default bail - the stipulated 60/90 day remand period under Section 167 CrPC ought to be computed from the date when a Magistrate authorizes remand - In cases where the chargesheet / final report is filed on or after the 61st/91st day, the accused in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the accused - 3 judge bench answers reference. Enforcement Directorate v. Kapil Wadhawan, 2023 LiveLaw (SC) 249 : 2023 INSC 723

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Default bail can be cancelled on merits - there is no absolute bar that once a person is released on default bail under Section 167(2) Cr.P.C., his bail cannot be cancelled on merits and his bail can be cancelled on other general grounds like tampering with the evidence/witnesses; not cooperating with the investigating agency and/or not cooperating with the concerned Trial Court etc. [Para 11] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Grant of Default Bail - the bail so granted is not on merits - when an accused is released on default bail they are released on furnishing the bail bond by them on the failure of the investigating agency to complete the investigation and file the chargesheet within the stipulated time mentioned therein - the object and purpose of proviso to Section 167(2) Cr.P.C. is to impress upon the need for expeditious investigation within the prescribed time limit and to prevent laxity - the object is to inculcate a sense of its urgency and on default the Magistrate shall release the accused if he is ready and does furnish bail - it cannot be said that order of release on bail under proviso to Section 167(2) Cr.P.C. is an order on merits. [Para 8.1] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Grant of Default Bail - deemed to be released under provisions of Chapter XXXIII of the Cr.P.C., which includes Section 437 and 439 also - deeming fiction under Section 167(2) Cr.P.C. cannot be interpreted to the length of converting the order of default bail, which is not on merits as if passed on merits. [Para 8.1] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Code of Criminal Procedure, 1973; proviso to Section 167(2) - Grant of Default Bail - the merits brought out in the chargesheet and attending circumstances are relevant, as the bail was granted due to default of the investigating officer without Court's adverting to the merits but strong grounds are necessary to cancel the bail and mere filing of the chargesheet itself is not sufficient. [Para 9.2, 9.4, 9.7] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Grant of Default Bail - Order granting bail shall be deemed to be under Section 437(1) or (2) or Section 439(1) of the Cr.P.C. and that order can be cancelled when a case for cancellation is made out under Section 437(5) or 439(2) Cr.P.C. [Para 9.6, 9.7] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - In a case where an accused is released on default bail under Section 167(2) Cr.P.C., and thereafter on filing of the chargesheet, a strong case is made out and on special reasons being made out from the chargesheet that the accused has committed a non-bailable crime and considering the grounds set out in Sections 437(5) and Section 439(2), his bail can be cancelled on merits and the Courts are not precluded from considering the application for cancelation of the bail on merits. However, mere filing of the chargesheet is not enough, but as observed and held hereinabove, on the basis of the chargesheet, a strong case is to be made out that the accused has committed non-bailable crime and he deserves to be in custody. [Para 13] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - To hold that default bail cannot be cancelled on merits will be giving premium to lethargic investigation-In a given case, even if the accused has committed a very serious offence, may be under the NDPS or even committed murder(s), still however, he manages through a convenient investigating officer and he manages not to file the chargesheet within the prescribed time limit mentioned under Section 167(2) Cr.P.C. and got released on default bail, it may lead to giving a premium to illegality and/or dishonesty- Such an interpretation frustrates the course of justice. [Para 12] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Section 173 - Report of police officer on completion of investigation

Code of Criminal Procedure, 1973; Section 173 (8) - District Police Chief cannot order further investigation without permission from magistrate or higher court - Power to order further investigation rests with either with the concerned magistrate or with a higher court and not with an investigating agency. Peethambaran v. State of Kerala, 2023 LiveLaw (SC) 402 : 2023 INSC 481

Code of Criminal Procedure, 1973; Section 173(8) - Even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. There is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted - Prior to carrying out further investigation under Section 173(8) of the CrPC it is not necessary that the order accepting the final report should be reviewed, recalled or quashed - Though the order passed by the Magistrate accepting a final report under Section 173 is a judicial order, there is no requirement for recalling, reviewing or quashing the said order for carrying out further investigation under Section 173(8) of the CrPC - There is nothing in the CrPC to suggest that the court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of the CrPC - Mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial and effective justice. (Para 50, 73, 76- 77) State v. Hemendhra Reddy, 2023 LiveLaw (SC) 365 : 2023 INSC 460

Code of Criminal Procedure, 1973; Section 173(8), 173(2)(i) - Alternatives before a Magistrate when a “Final Report” is filed - The Magistrate may either: (1) accept the report and take cognizance of offence and issue process, (2) may disagree with the report and drop the proceeding or may take cognizance on the basis of report/material submitted by the investigation officer, (3) may direct further investigation under Section 156(3) and require police to make a report as per Section 173(8) of the CrPC. (4) may treat the protest complaint as a complaint, and proceed under Sections 200 and 202 of the CrPC. State v. Hemendhra Reddy, 2023 LiveLaw (SC) 365 : 2023 INSC 460

Section 190 - Cognizance of offences by Magistrates

Code of Criminal Procedure, 1973; Section 190 - the cognizance is taken of an offence and not of the offender - As such the phrase “taking cognizance” has nowhere been defined in the Cr.PC, however has been interpreted by this Court to mean “become aware of” or “to take notice of judicially. (Para 10) Cardinal Mar George Alencherry v. State of Kerala, 2023 LiveLaw (SC) 203 : (2023) 2 SCR 1014 : 2023 INSC 250

Code of Criminal Procedure, 1973; Section 190, 203 - an order of dismissal under Section 203 of the Criminal Procedure Code is no bar to the entertainment of a second complaint on the same facts, but it will be entertained only in exceptional circumstances, e.g. that the previous order was passed on an incomplete record or on a misunderstanding of nature of complaint or it was manifestly absurd. Cardinal Mar George Alencherry v. State of Kerala, 2023 LiveLaw (SC) 203 : (2023) 2 SCR 1014 : 2023 INSC 250

Section 197 – Prosecution of Judges and public servants

Code of Criminal Procedure, 1973 – Section 197(1) – Discharge of Official Duties by Public Servants – Previous sanction requirement – Determination of the existence of a reasonable nexus between an alleged offence by a public servant and their official duties – Held, a public servant would be considered to have acted to purported to have acted in the discharge of their official duty at the time of the commission of an alleged offence if the said government employee could take cover – rightly or wrongly – under any existing policy, and as such, would be granted protection under Section 197(1) of the Code of Criminal Procedure, 1973 – Appeal allowed. A. Srinivasulu v. State of Rep. by the Inspector of Police, 2023 LiveLaw (SC) 485 : 2023 INSC 971

Section 200 - Examination of complainant

Code of Criminal Procedure, 1973; Section 200 - No doubt, summoning of an accused is a serious matter and therefore the Magistrate before issuing the summons to the accused is obliged to scrutinize carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face any frivolous complaint, nonetheless one of the objects of Section 202 Cr.P.C. is also to enable the Magistrate to prosecute a person or persons against whom grave allegations are made. Just as it is necessary to curtail vexatious and frivolous complaints against innocent persons, it is equally essential to punish the guilty after conducting a fair trial. (Para 18) Cardinal Mar George Alencherry v. State of Kerala, 2023 LiveLaw (SC) 203 : (2023) 2 SCR 1014 : 2023 INSC 250

Section 202 - Postponement of issue of process

Code of Criminal Procedure, 1973; Section 202, 204 - While summoning an accused who resides outside the jurisdiction of court, it is obligatory upon the Magistrate to inquire into the case himself or direct investigation be made by a police officer or such other officer for finding out whether or not there is sufficient ground for proceeding against the accused. (Para 22) Deepak Gaba v. State of Uttar Pradesh, 2023 LiveLaw (SC) 3 : AIR 2023 SC 228 : (2023) 3 SCC 423 : 2023 INSC 1

Section 204 - Issue of process

Code of Criminal Procedure, 1973; Section 256 - Where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. BLS Infrastructure Ltd. v. Rajwant Singh, 2023 LiveLaw (SC) 153 : (2023) 4 SCC 326 : (2023) 2 SCR 183 : 2023 INSC 187

Code of Criminal Procedure, 1973; Section 204 - Summoning order is to be passed when the complainant discloses the offence, and when there is material that supports and constitutes essential ingredients of the offence. It should not be passed lightly or as a matter of course. When the violation of law alleged is clearly debatable and doubtful, either on account of paucity and lack of clarity of facts, or on application of law to the facts, the Magistrate must ensure clarification of the ambiguities. Summoning without appreciation of the legal provisions and their application to the facts may result in an innocent being summoned to stand the prosecution/trial. Initiation of prosecution and summoning of the accused to stand trial, apart from monetary loss, sacrifice of time, and effort to prepare a defence, also causes humiliation and disrepute in the society. It results in anxiety of uncertain times. (Para 21) Deepak Gaba v. State of Uttar Pradesh, 2023 LiveLaw (SC) 3 : AIR 2023 SC 228 : (2023) 3 SCC 423 : 2023 INSC 1

Section 211 - Contents of charge

Code of Criminal Procedure, 1973; Sections 211-224, 464 - Trial Courts ought to be very meticulous when it comes to the framing of charges. In a given case, any such error or omission may lead to acquittal and/or a long delay in trial due to an order of remand which can be passed under sub-section (2) of Section 464 of CrPC. Apart from the duty of the Trial Court, even the public prosecutor has a duty to be vigilant, and if a proper charge is not framed, it is his duty to apply to the Court to frame an appropriate charge. (Para 16) Soundarajan v. State, 2023 LiveLaw (SC) 314 : AIR 2023 SC 2136 : 2023 INSC 377

Section 235 - Judgment of acquittal or conviction

Code of Criminal Procedure, 1973; Section 235(2) - Appellate court reverses acquittal of two accused in murder case - However imposes sentences on them without hearing them on sentence as per Section 235(2) - Supreme Court sets aside the sentence finding it to be ex-facie illegal as accused were not heard - In view of sub Section (2) of Section 235 of CrPC, the court is obliged to hear the accused persons after their conviction on the quantum of sentence before passing a sentence against them - The principle of according opportunity of hearing to the convict before sentencing him is equally applicable where the sentencing is done by the appellate court. Fedrick Cutinha v. State of Karnataka, 2023 LiveLaw (SC) 326 : AIR 2023 SC 2102 : 2023 INSC 384

Section 277 - Language of record of evidence

Code of Criminal Procedure, 1973; Section 277 - The evidence of the witness has to be recorded in the language of the court or in the language of the witness as may be practicable and then get it translated in the language of the court for forming part of the record. However, recording of evidence of the witness in the translated form in English language only, though the witness gives evidence in the language of the court, or in his/her own vernacular language, is not permissible - The text and tenor of the evidence and the demeanor of a witness in the court could be appreciated in the best manner only when the evidence is recorded in the language of the witness - When a question arises as to what exactly the witness had stated in his/her evidence, it is the original deposition of the witness which has to be taken into account and not the translated memorandum in English prepared by the Presiding Judge - All courts while recording the evidence of the witnesses, shall duly comply with the provisions of Section 277 of Cr.PC. (Para 25) Naim Ahamed v. State (NCT of Delhi), 2023 LiveLaw (SC) 66 : (2023) 1 SCR 1061 : 2023 INSC 85

Section 306 - Tender of pardon to accomplice

Code of Criminal Procedure, 1973; Section 306 (4)(a) - Prevention of Corruption Act, 1988; Section 5(2) - When the Special Court chooses to take cognizance directly under Section 5(2) of the Prevention of Corruption Act, the question of Approver being examined as a witness in the Court of the Magistrate as required by Section 306 (4)(a) of the Code of Criminal Procedure does not arise. A. Srinivasulu v. State of Rep. by the Inspector of Police, 2023 LiveLaw (SC) 485 : 2023 INSC 971

Code of Criminal Procedure, 1973; Sections 306 and 307 - Section 306(4) CrPC contemplates that every person accepting a tender of pardon be examined as a witness both in the Court of the Magistrate taking cognizance and in the subsequent trial. The requirement of Section 306(4)(a) CrPC is relaxed in cases falling under Section 307 CrPC, which empowers the Court to which the case is committed for trial, itself to grant pardon. Where the Special Judge takes cognizance of offence directly, Section 306 of the Code would get by-passed it is Section 307 of the Code which would become applicable. A. Srinivasulu v. State of Rep. by the Inspector of Police, 2023 LiveLaw (SC) 485 : 2023 INSC 971

Section 311 - Power to summon material witness, or examine person present

Code of Criminal Procedure, 1973; Sections 311 and 391 - Power of the court to take additional evidence - Section 311 of the Cr.P.C. consists of two parts; the first gives power to the court to summon any witness at any stage of inquiry, trial or other proceedings, whether the person is listed as a witness, or is in attendance though not summoned as a witness. Secondly, the trial court has the power to recall and re-examine any person already examined if his evidence appears to be essential to the just decision of the case. On the other hand, the discretion under Section 391 of the Cr.P.C. should be read as somewhat more restricted in comparison to Section 311 of the Cr.P.C., as the appellate court is dealing with an appeal, after the trial court has come to the conclusion with regard to the guilt or otherwise of the person being prosecuted. The appellate court can examine the evidence in depth and in detail, yet it does not possess all the powers of the trial court as it deals with cases wherein the decision has already been pronounced. (Para 16) State of Rajasthan v. Asharam @ Ashumal, 2023 LiveLaw (SC) 316 : AIR 2023 SC 2228 : 2023 INSC 383

Section 311A – Power of Magistrate to order person to give specimen signatures or handwriting

Code of Criminal Procedure, 1973; Section 311A – Evidence Act, 1872; Section 73 - Specimen Signatures and Handwriting Samples - “to be a witness against himself” - Since specimen signatures and handwriting samples are not incriminating by themselves as they are to be used for the purpose of identification of the handwriting on a material with which the investigators are already acquainted with, compulsorily obtaining such specimens would not infringe the rule against self-incrimination enshrined in Article 20(3) of the Constitution of India. (Para 53, 57) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418 : 2023 INSC 443

Section 313 - Power to examine the accused

Code of Criminal Procedure, 1973; Section 313 - Power to examine the accused - (i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction; (ii) The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence; (iii) The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused; (iv) The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused; (v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident; (vi) In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him; and (vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under Section 313 of CrPC. (viii) While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered. (Para 16) Raj Kumar @ Suman v. State (NCT of Delhi), 2023 LiveLaw (SC) 434 : AIR 2023 SC 3113 : 2023 INSC 520

Code of Criminal Procedure, 1973; Section 313 – Power to examine the accused - While recording the statement under Section 313 of CrPC in cases involving a large number of prosecution witnesses, the Judicial Officers should take benefit of Section 313 (5) of CrPC, which will ensure that the chances of committing errors and omissions are minimized. Section 313(5) CrPC says that the Court may take help of the Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section. (Para 21) Raj Kumar @ Suman v. State (NCT of Delhi), 2023 LiveLaw (SC) 434 : AIR 2023 SC 3113 : 2023 INSC 520

Code of Criminal Procedure, 1973; Section 313 - It is optional for the accused to explain the circumstances put to him under section 313, but the safeguard provided by it and the valuable right that it envisions, if availed of or exercised, could prove decisive and have an effect on the final outcome, which would in effect promote utility of the exercise rather than its futility. (Para 16) Premchand v. State of Maharashtra, 2023 LiveLaw (SC) 168 : AIR 2023 SC 1487 : (2023) 5 SCC 522 : (2023) 2 SCR 119 : 2023 INSC 207

Code of Criminal Procedure, 1973; Section 313 - Iudicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like 'false', 'I don't know', 'incorrect', etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances. (Para 16) Premchand v. State of Maharashtra, 2023 LiveLaw (SC) 168 : AIR 2023 SC 1487 : (2023) 5 SCC 522 : (2023) 2 SCR 119 : 2023 INSC 207

Code of Criminal Procedure, 1973; Section 313 - Settled principles summarized. (Para 15) Premchand v. State of Maharashtra, 2023 LiveLaw (SC) 168 : AIR 2023 SC 1487 : (2023) 5 SCC 522 : (2023) 2 SCR 119 : 2023 INSC 207

Code of Criminal Procedure, 1973; Section 313 (5) - Once a written statement is filed by the accused under Section 313(5) of the Code of Criminal Procedure, 1973 and the Trial Court marks it as exhibit, such statement must be treated as part of the statement of the accused under Section 313(1) read with Section 313(4) Cr.P.C. (Para 17) Premchand v. State of Maharashtra, 2023 LiveLaw (SC) 168 : AIR 2023 SC 1487 : (2023) 5 SCC 522 : (2023) 2 SCR 119 : 2023 INSC 207

Section 319 - Power to proceed against other persons appearing to be guilty of offence

Code of Criminal Procedure, 1973 - Section 319 Cr.P.C., which envisages a discretionary power, empowers the court holding a trial to proceed against any person not shown or mentioned as an accused if it appears from the evidence that such person has committed a crime for which he ought to be tried together with the accused who is facing trial. Such power can be exercised by the court qua a person who is not named in the FIR, or named in the FIR but not shown as an accused in the charge-sheet. Therefore, what is essential for exercise of the power under section 319, Cr. PC is that the evidence on record must show the involvement of a person in the commission of a crime and that the said person, who has not been arraigned as an accused, should face trial together with the accused already arraigned. (Para 9) Jitendra Nath Mishra v. State of U.P., 2023 LiveLaw (SC) 480 : AIR 2023 SC 2757 : 2023 INSC 576

Code of Criminal Procedure 1973; Section 319 - Power under Section 319 ought to be exercised sparingly and would require much stronger evidence than near probability of the accused person's complicity. The test elucidated by the Constitution Bench is as under -The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. Vikas Rathi v. State of U.P., 2023 LiveLaw (SC) 172 : (2023) 2 SCR 6 : 2023 INSC 186

Code of Criminal Procedure, 1973; Section 319 - Supreme Court lays down procedural guidelines to prevent abuse. Juhru v. Karim, 2023 LiveLaw (SC) 128 : AIR 2023 SC 1160 : (2023) 5 SCC 406 :(2023) 2 SCR 519 : 2023 INSC 148

Section 320 - Compounding of offences

Code of Criminal Procedure, 1973; Section 320 - Negotiable Instruments Act, 1881; Section 147 - Compounding of offences - The Appellants cannot be convicted on the basis of the orders passed by the courts below, as the settlement is nothing but a compounding of the offence-This is a very clear case of the parties entering into an agreement and compounding the offence to save themselves from the process of litigation. When such a step has been taken by the parties, and the law very clearly allows them to do the same, the High Court then cannot override such compounding and impose its will. (Para 8, 9, 11) B.V. Seshaiah v. State of Telangana, 2023 LiveLaw (SC) 75 : AIR 2023 SC 717 : (2023) 2 SCR 293 : 2023 INSC 93

Section 378 - Appeal in case of acquittal

Code of Criminal Procedure, 1973; Section 378 - Appeal against acquittal- Scope of interference - Unless such a finding is found to be perverse or illegal/impossible, it is not permissible for the appellate Court to interfere with the same. Nikhil Chandra Mondal v. State of West Bengal, 2023 LiveLaw (SC) 171 : AIR 2023 SC 1323 : (2023) 2 SCR 20 : 2023 INSC 198

Code of Criminal Procedure, 1973; Section 378, 397-401 - In an appeal/revision, the High court could have set aside the order of acquittal only if the findings as recorded by the trial Court were perverse or impossible. (Para 7) P. Sivakumar v. State, 2023 LiveLaw (SC) 116

Code of Criminal Procedure, 1973; Section 378 - Scope of interference in an appeal against acquittal is limited - Unless the High Court found that the appreciation of the evidence is perverse, it could not have interfered with the finding of acquittal recorded by the Trial Court. (Para 21) Rajaram Sriramulu Naidu v. Maruthachalam, 2023 LiveLaw (SC) 46 : AIR 2023 SC 471 : (2023) 1 SCR 809 : 2023 INSC 51

Section 385 - Procedure for hearing appeals not dismissed summarily

Code of Criminal Procedure, 1973; Section 385 - Procedure for hearing appeals not dismissed summarily - The language of Section 385 shows that the Court sitting in appeal governed thereby is required to call for the records of the case from the concerned Court below. The same is an obligation, power coupled with a duty, and only after the perusal of such records would an appeal be decided. (Para 36) Jitendra Kumar Rode v. Union of India, 2023 LiveLaw (SC) 347 : 2023 INSC 419

Code of Criminal Procedure, 1973; Section 385 - Whether, in the absence of the records of the Court of Trial, the appellate Court could have upheld the conviction and enhanced the quantum of fine? Held, the Accused, in appeal, has a right to have the record perused by the Appellate Court and, therefore, upholding a conviction by merely having noted that the counsel for the accused not having the record at the time of filing the appeal is “doubtful” and that “no one can believe” the appeal would have been filed without perusing the record, as observed by the High Court is not correct. The job of the Court of Appeal is not to depend on the lower Court's judgment to uphold the conviction but, based on the record available before it duly called from the Trial Court and the arguments advanced before it, to come to a conclusion thereon. (Para 33) Jitendra Kumar Rode v. Union of India, 2023 LiveLaw (SC) 347 : 2023 INSC 419

Section 389 - Suspension of sentence pending the appeal; release of appellant on bail

Code of Criminal Procedure, 1973; Section 389 - the Appellate Court should not reappreciate the evidence at the stage of Section 389 of the Cr.P.C. and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach. (Para 33) Omprakash Sahni v. Jai Shankar Chaudhary, 2023 LiveLaw (SC) 389 : AIR 2023 SC 2202 : (2023) 6 SCC 123 : 2023 INSC 478

Code of Criminal Procedure, 1973; Section 389 - to suspend the substantive order of sentence under Section 389 Cr.P.C., there ought to be something apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable - the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. (Para 33) Omprakash Sahni v. Jai Shankar Chaudhary, 2023 LiveLaw (SC) 389 : AIR 2023 SC 2202 : (2023) 6 SCC 123 : 2023 INSC 478

Code of Criminal Procedure, 1973; Section 389 - Appellant was convicted by the Trial Court under Sections 307,323 and 341 IPC - High Court suspended the sentence, but imposed strict conditions of deposit of fine amount of Rs. 1,00,000/- along with a surety of Rs. 1,00,000/- and two bail bonds of Rs. 50,000/- each - Waiving these conditions, the Supreme Court observed: Excessive conditions imposed on the appellant, in practical manifestation, acted as a refusal to the grant of bail - Can the Appellant, for not being able to comply with the excessive requirements, be detained in custody endlessly? To keep the Appellant in jail, that too in a case where he normally would have been granted bail for the alleged offences, is not just a symptom of injustice, but injustice itself. Guddan @ Roop Narayan v. State of Rajasthan, 2023 LiveLaw (SC) 45

Section 391 - Appellate Court may take further evidence or direct it to be taken

Code of Criminal Procedure, 1973; Section 391 - Appellate Court may take further evidence or direct it to be taken - The power to take additional evidence in an appeal is to be exercised to prevent injustice and failure of justice, and thus, must be exercised for good and valid reasons necessitating the acceptance of the prayer. (Para 17) State of Rajasthan v. Asharam @ Ashumal, 2023 LiveLaw (SC) 316 : AIR 2023 SC 2228 : 2023 INSC 383

Section 406 - Power of Supreme Court to transfer cases and appeals

Code of Criminal Procedure, 1973; Section 406 - That most of the accused and witnesses are from A state is not a ground to transfer case from B state to A state. (Para 12) Ka Rauf Sherif v. Directorate of Enforcement, 2023 LiveLaw (SC) 284 : (2023) 6 SCC 92 : 2023 INSC 347

Code of Criminal Procedure, 1973; Section 406 - The lack of jurisdiction of a Court to entertain a complaint can be no ground to order its transfer. A congenital defect of lack of jurisdiction, assuming that it exists, inures to the benefit of the accused and hence it need not be cured at the instance of the accused to his detriment. (Para 11) Ka Rauf Sherif v. Directorate of Enforcement, 2023 LiveLaw (SC) 284 : (2023) 6 SCC 92 : 2023 INSC 347

Code of Criminal Procedure 1973; Section 406 - This Court has allowed transfers only in exceptional cases considering the fact that transfers may cast unnecessary aspersions on the State Judiciary and the prosecution agency. Thus, over the years, this Court has laid down certain guidelines and situations wherein such power can be justiciably invoked. Afjal Ali Sha @ Abjal Shaukat v. State of West Bengal, 2023 LiveLaw (SC) 268 : (2023) 2 SCR 1090 : 2023 INSC 257

Code of Criminal Procedure, 1973; Section 432 - Remission - It is not open to the State to adopt an arbitrary yardstick for picking up cases for premature release. It must strictly abide by the terms of its policies bearing in mind the fundamental principle of law that each case for premature release has to be decided on the basis of the legal position as it stands on the date of the conviction subject to a more beneficial regime being provided in terms of a subsequent policy determination. The provisions of the law must be applied equally to all persons. Moreover, those provisions have to be applied efficiently and transparently so as to obviate the grievance that the policy is being applied unevenly to similarly circumstanced persons. An arbitrary method adopted by the State is liable to grave abuse and is liable to lead to a situation where persons lacking resources, education and awareness suffer the most. Rajkumar v. State of Uttar Pradesh, 2023 LiveLaw (SC) 144 : 2023 INSC 718

Code of Criminal Procedure, 1973; Section 406 - Transfer of case from one state to another must be ordered sparingly - followed Umesh Kumar Sharma vs. State of Uttarakhand, 2020 (11) SCALE 562 - It is also important to bear in mind that transfer of a criminal case from one State to another implicitly reflect upon the credibility of not only the State judiciary but also of the prosecution agency. Neelam Pandey v. Rahul Shukla, 2023 LiveLaw (SC) 141

Code of Criminal Procedure, 1973; Section 406 - Negotiable Instruments Act, 1881; Section 138, 142(1) - Notwithstanding the non obstante clause in Section 142(1) of the NI Act, the power of this Court to transfer criminal cases under Section 406 Cr.P.C. remains intact in relation to offences under Section 138 of the NI Act - the contention that the non obstante clause in Section 142(1) of the Act of 1881 would override Section 406 Cr.P.C. and that it would not be permissible for this Court to transfer the said complaint cases, in exercise of power thereunder, cannot be countenanced. (Para 13) Yogesh Upadhyay v. Atlanta Ltd., 2023 LiveLaw (SC) 125 : AIR 2023 SC 1151 : (2023) 2 SCR 511 : 2023 INSC 150

Section 432 – Power to suspend or remit sentences

Code of Criminal Procedure 1973; Section 432 – Remission - In determining the entitlement of a convict for premature release, the policy of the State Government on the date of the conviction would have to be the determinative factor. However, if the policy which was prevalent on the date of the conviction is subsequently liberalised to provide more beneficial terms, those should also be borne in mind. (Para 4) Hitesh v. State of Gujarat, 2023 LiveLaw (SC) 72

Section 433 - Power to commute sentence.

Code of Criminal Procedure, 1973; Section 433 (2) - Grant of Remission - Presiding Judge should give adequate reasons while giving opinion under Section 432 (2) Cr.P.C. Jaswant Singh v. State of Chhattisgarh, 2023 LiveLaw (SC) 33 : AIR 2023 SC 419 : 2023 INSC 31

Section 437 - When bail may be taken in case of non-bailable offence

Code of Criminal Procedure, 1973; Section 437 - Seeking pre-deposit of bank guarantee for grant of bail is unsustainable. Makhijani Pushpak Harish v. State of Gujarat, 2023 LiveLaw (SC) 345

Code of Criminal Procedure, 1973; Section 437 - 439, Section 357 - Interim victim compensation cannot be imposed as a condition for anticipatory bail - Question of interim victim compensation cannot form part of the bail jurisprudence - Victim compensation is simultaneous with the final view taken in respect of the alleged offence, i.e., whether it was so committed or not and, thus, there is no question of any imposition pre-finality of the matter pre-trial - In cases of offences against body, compensation to the victim should be methodology for redemption. Similarly, to prevent unnecessary harassment, compensation has been provided where meaningless criminal proceedings had been started. Such a compensation can hardly be determined at the stage of grant of bail. Talat Sanvi vs State of Jharkhand, 2023 LiveLaw (SC) 83 : (2023) 1 SCR 289 : 2023 INSC 80

Code of Criminal Procedure, 1973; Section 437 - 439 - The process of criminal law cannot be utilised for arm-twisting and money recovery, particularly while opposing the prayer for bail - The question as to whether pre-arrest bail, or for that matter regular bail, in a given case is to be granted or not is required to be examined and the discretion is required to be exercised by the Court with reference to the material on record and the parameters governing bail considerations. The concession of pre-arrest bail or regular bail could be declined even if the accused has made payment of the money involved or offers to make any payment; conversely, in a given case, the concession of pre-arrest bail or regular bail could be granted irrespective of any payment or any offer of payment. (Para 10) Bimla Tiwari v. State of Bihar, 2023 LiveLaw (SC) 47 : (2023) 1 SCR 501 : 2023 INSC 45

Code of Criminal Procedure, 1973; Section 437-439, 389 - Excessive conditions cannot be imposed while granting bail/suspension of sentence - Conditions of bail cannot be so onerous that their existence itself tantamounts to refusal of bail. (Para 9-16) Guddan @ Roop Narayan v. State of Rajasthan, 2023 LiveLaw (SC) 45

Section 438 - Direction for grant of bail to person apprehending arrest.

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

Code of Criminal Procedure 1973; Section 438 - Supreme Court sets aside anticipatory bail granted to an accused in a 'casting couch' rape case - The nature and gravity of the alleged offence has been disregarded by the HC - So has the financial stature, position and standing of the accused vis-à-vis the appellant/prosecutrix been ignored. (Para 22) Ms. X v. State of Maharashtra, 2023 LiveLaw (SC) 205 : (2023) 2 SCR 1112 : 2023 INSC 252

Code of Criminal Procedure, 1973; Section 438 - Addition of a serious offence can be a circumstance where a Court can direct that the accused be arrested and committed to custody even though an order of bail was earlier granted in his favour in respect of the offences with which he was charged when his application for bail was considered and a favourable order was passed. The recourse available to an accused in a situation where after grant of bail, further cognizable and non-bailable offences are added to the FIR, is for him to surrender and apply afresh for bail in respect of the newly added offences. The investigating agency is also entitled to move the Court for seeking the custody of the accused by invoking the provisions of 437(5)3 and 439(2)34 Cr.P.C., falling under Chapter XXXII of the Statute that deals with provisions relating to bails and bonds. (Para 20) Ms. X v. State of Maharashtra, 2023 LiveLaw (SC) 205 : (2023) 2 SCR 1112 : 2023 INSC 252

Code of Criminal Procedure, 1973; Section 438 - Victim has right to be heard in bail application of the accused - No doubt, the State was present and was represented in the said proceedings, but the right of the prosecutrix could not have been whittled down for this reason alone. In a crime of this nature where ordinarily, there is no other witness except for the prosecutrix herself, it was all the more incumbent for the High Court to have lent its ear to the appellant. (Para 23, 24) Ms. X v. State of Maharashtra, 2023 LiveLaw (SC) 205 : (2023) 2 SCR 1112 : 2023 INSC 252

Code of Criminal Procedure 1973; Section 438 - Is it necessary to exhaust remedy available in Sessions Court before approaching High Court?- Whether the High Court exercising jurisdiction under Section 438 has discretion not to entertain such an application on the ground that the applicant must first apply to the Court of Sessions - SC to consider. Gauhati High Court Bar Association v. State of Assam, 2023 LiveLaw (SC) 177

Code of Criminal Procedure, 1973; Section 438 - Anticipatory bail application for money laundering offence should satisfy rigours of Section 45 PMLA - Observations made by the High Court that the provisions of Section 45 of the Act, 2002 shall not be applicable in connection with an application under Section 438 Cr.P.C. is just contrary to the decision in the case of Assistant Director Enforcement Directorate vs Dr VC Mohan and the same is on misunderstanding of the observations made in the case of Nikesh Tarachand Shah Vs. Union of India and Anr.; (2018) 11 SCC 1. (Para 5) Directorate of Enforcement v. M. Gopal Reddy, 2023 LiveLaw (SC) 138 : 2023 INSC 163

Code of Criminal Procedure; Section 438 - Dismissal for default / non prosecution of bail application - Practice adopted by the High Court in passing orders for dismissal of bail application in default disapproved. Rahul Sharma v. State of Uttar Pradesh, 2023 LiveLaw (SC) 64

Code of Criminal Procedure, 1973; Section 438 - Ordinarily, there is no justification in adopting such a course that for the purpose of being given the concession of pre-arrest bail, the person apprehending arrest ought to make payment. (Para 11) Bimla Tiwari v. State of Bihar, 2023 LiveLaw (SC) 47 : (2023) 1 SCR 501 : 2023 INSC 45

Section 439 - Special powers of High Court or Court of Session regarding bail

Code of Criminal Procedure, 1973; Section 439 - though usually the proper course of action of the High Court ought to have been to confine itself to the acceptance/rejection of the prayer for bail made by the accused under Section 439 of the Code; however, the High Court, being satisfied that there were, in its opinion, grave lapses on the part of the police/investigative machinery, which may have fatal consequences on the justice delivery system, could not have simply shut its eyes. (Para 13) Sanjay Dubey v. State of Madhya Pradesh, 2023 LiveLaw (SC) 435 : 2023 INSC 519

Section 482 - Saving of inherent power of High Court.

Code of Criminal Procedure, 1973; Section 482 - Unexplained inordinate delay must be taken into consideration as a very crucial factor and ground for quashing a criminal complaint. (Para 16) Chanchalapati Das v. State of West Bengal, 2023 LiveLaw (SC) 446

Code of Criminal Procedure, 1973; Section 482 - Where purely civil disputes, more often than not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. (Para 36) Gulam Mustafa v. State of Karnataka, 2023 LiveLaw (SC) 421 : AIR 2023 SC 2999 : 2023 INSC 511

Code of Criminal Procedure, 1973; Section 482 - High Court cannot quash criminal proceedings at section 482 Cr.P.C. stage by saying charges aren't proved - High Court cannot conduct a "mini trial" while exercising powers under Section 482 Cr.P.C. - At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not.” - Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial - What is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried. Central Bureau of Investigation v. Aryan Singh, 2023 LiveLaw (SC) 292 : AIR 2023 SC 1987 : (2023) 2 SCR 819 : 2023 INSC 338

Code of Criminal Procedure, 1973; Section 482 - Supreme Court criticises Kerala HC for overstepping jurisdiction to pass general orders - High Court in its overzealous approach" exceeded its jurisdiction under Section 482 CrPC by enlarging the scope of the petition and crossed all the boundaries of judicial activism and judicial restraint by passing such orders under the guise of doing real and substantial justice. (Para 28) Cardinal Mar George Alencherry v. State of Kerala, 2023 LiveLaw (SC) 203 : (2023) 2 SCR 1014 : 2023 INSC 250

Code of Criminal Procedure, 1973; Section 482 - Supreme Court opines that it is desirable that High Courts refrain from quashing cases under the Prevention of Corruption Act even if it suspected that the case is registered by a new government against officers who supported the previous government-it would be eminently desirable if the high courts maintain a hands-off approach and not quash a first information report pertaining to “corruption” cases, specially at the stage of investigation, even though certain elements of strong-arm tactics of the ruling dispensation might be discernible. (Para 74) State of Chattisgarh v. Aman Kumar Singh, 2023 LiveLaw (SC) 158 : AIR 2023 SC 1441 : 2023 INSC 189

Code of Criminal Procedure, 1973; Section 482 - Penal Code, 1860; Section 420 - A breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings - The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes. Sarabjit Kaur v. State of Punjab, 2023 LiveLaw (SC) 157 : (2023) 5 SCC 360 : 2023 INSC 188

Code of Criminal Procedure, 1973; Section 482 - Constitution of India, 1950; Article 142 - In cases of offences relating to matrimonial disputes, if the Court is satisfied that the parties have genuinely settled the disputes amicably, then for the purpose of securing ends of justice, criminal proceedings inter-se parties can be quashed. Rangappa Javoor v. State of Karnataka, 2023 LiveLaw (SC) 74

Code of Criminal Procedure 1973; Section 482 - Criminal proceedings quashed - the respondent had failed to make specific allegation against the appellants herein in respect of the aforesaid offences. The factual position thus would reveal that the genesis as also the purpose of criminal proceedings are nothing but the aforesaid incident and further that the dispute involved is essentially of civil nature. The appellants and the respondents have given a cloak of criminal offence in the issue-coupled with the fact that in respect of the issue involved, which is of civil nature, the respondent had already approached the jurisdictional civil court by instituting a civil suit and it is pending, there can be no doubt with respect to the fact that the attempt on the part of the respondent is to use the criminal proceedings as weapon of harassment against the appellants. (Para 10, 11) Usha Chakraborty v. State of West Bengal, 2023 LiveLaw (SC) 67 : AIR 2023 SC 688 : 2023 INSC 86

Code of Criminal Procedure 1973; Section 482 - Jurisdiction under Section 482 Cr.P.C. is to be exercised with care and caution and sparingly. To wit, exercise of the said power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of process of law. (Para 3) Usha Chakraborty v. State of West Bengal, 2023 LiveLaw (SC) 67 : AIR 2023 SC 688 : 2023 INSC 86

Code of Criminal Procedure, 1973; Section 482 - Appeal against High Court order that quashed criminal proceedings observing that that the complaint lodged against the husband demand of dowry is inherently improbable and that it falls in the category of a bogus prosecution - Allowed - Merely because the wife was suffering from the disease AIDS and/or divorce petition was pending, it cannot be said that the allegations of demand of dowry were highly/inherently improbable - Once the charge sheet was filed after the investigation having been found prima facie case, it cannot be said that the prosecution was bogus. X v. State of Uttar Pradesh, 2023 LiveLaw (SC) 26

Code of Criminal Procedure, 1973; Section 482 - As per the settled position of law, it is the right conferred upon the Investigating Agency to conduct the investigation and reasonable time should be given to the Investigating Agency to conduct the investigation unless it is found that the allegations in the FIR do not disclose any cognizable offence at all or the complaint is barred by any law. State represented by the Inspector of Police v. Maridass, 2023 LiveLaw (SC) 25

Code of Criminal Procedure, 1973; Section 482 - Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989; Sections 3(1)(v) and (va) - Private civil dispute between the parties is converted into criminal proceedings - Initiation of the criminal proceedings therefore, is nothing but an abuse of process of law and Court - Complaint and summoning order quashed. B. Venkateswaran v. P. Bakthavatchalam, 2022 LiveLaw (SC) 14 : AIR 2023 SC 262 : 2023 INSC 18

Companies Act, 1956

Companies Act, 1956; Section 81 - The Supreme Court has upheld the largely disproportionate allotment of rights share in favour of one group of shareholders of a private limited company, substantially increasing its shareholding percentage in the company over other group of shareholders. The court held that though Section 81(3) of Companies Act, 1956 expressly exempts a private limited company from the purview of Section 81, which deals with further issue of capital; however, notwithstanding the same, the conduct of the Directors is to be judged on a higher yardstick. The court, however, remarked that the fact that the Directors may also benefit from a decision taken primarily with the intention to promote the interest of the Company, cannot vitiate the decision. Thus, even though the Directors who constituted the said shareholders' group, benefited and made a gain from the implementation of a decision taken primarily with a view to safeguard the interest of the Company, it cannot by itself render the decision vulnerable to attack. Hasmukhlal Madhavlal Patel v. Ambika Food Products Pvt Ltd., 2023 LiveLaw (SC) 490 : AIR 2023 SC 2977 : 2023 INSC 582

Companies Act, 2013

Companies Act, 2013 - Upholds the constitutionality of Section 327(7) of the Companies Act, which excludes workers dues from priority payment in the event of liquidation of a company under the Insolvency and Bankruptcy Code 2016 - The object and purpose of amending the Companies Act 2013 and to exclude Sections 326 and 327 in the event of liquidation of a company under IBC seem to be that there may not be two different provisions in respect to the winding up/ liquidation of a company. Therefore, in view of the enactment of the IBC, it was necessary to exclude the applicability of Section 326 and 327 of the 2013 Act, which cannot be said to be arbitrary, as contended on behalf of the petitioners. (Para 6) Moser Baer Karamchari Union v. Union of India, 2023 LiveLaw (SC) 386 : 2023 INSC 479

Companies Act, 2013; Section 140(5) - Challenge to the constitutional validity of section 140(5) fails - Section 140(5) is neither discriminatory, arbitrary and/or violative of Articles 14, 19(1)(g) of the Constitution of India, as alleged - The application/proceedings under section 140(5) of the Act, 2013 is held to be maintainable even after the resignation of the concerned auditors. (Para 16) Union of India v. Deloitte Haskins and Sells LLP, 2023 LiveLaw (SC) 388 : AIR 2023 SC 2576 : 2023 INSC 484

Company Law

Companies Act - Decision to allot additional shares cannot be set aside merely because promoters have also benefited. Hasmukhlal Madhavlal Patel v. Ambika Food Products Pvt Ltd., 2023 LiveLaw (SC) 490 : AIR 2023 SC 2977 : 2023 INSC 582

Section 140(5) Companies Act 2013 is constitutional; resignation of auditor won't end proceedings under Sec 140(5). Union of India v. Deloitte Haskins and Sells LLP, 2023 LiveLaw (SC) 388 : AIR 2023 SC 2576 : 2023 INSC 484

No priority for workers' dues after liquidation of company under IBC: Supreme Court upholds Section 327(7) of Companies Act 2013. Moser Baer Karamchari Union v. Union of India, 2023 LiveLaw (SC) 386 : 2023 INSC 479

Supreme Court allows disbursal of Rs 5000 Crores from “SEBI-Sahara Fund” to depositors; Former SC Judge to monitor disbursement. Pinak Pani Mohanty v. Union of India, 2023 LiveLaw (SC) 255 : 2023 INSC 320

Fees paid by director does not attract exemption under Clause 4 of Schedule III of Sebi Stock Broker Regulations. GPSK Capital Pvt. Ltd. (Formerly Mantri Finance Ltd.) v. Securities and Exchange Board of India, 2023 LiveLaw (SC) 222 : (2023) 2 SCR 737 : 2023 INSC 262

Adani-Hindenburg Issue: Supreme Court directs SEBI to conclude investigation in 2 months, constitutes expert committee to review regulatory framework. Vishal Tiwari v. Union of India, 2023 LiveLaw (SC) 160 : AIR 2023 SC 1196 : (2023) 4 SCC 332 : (2023) 2 SCR 951 : 2023 INSC 191

Adani-Hindenburg - Know the members of the expert committee constituted by the Supreme Court to review regulatory mechanism. Vishal Tiwari v. Union of India, 2023 LiveLaw (SC) 160 : AIR 2023 SC 1196 : (2023) 4 SCC 332 : (2023) 2 SCR 951 : 2023 INSC 191

Adani-Hindenburg - Formation of expert committee does not divest SEBI of its responsibilities in continuing investigation. Vishal Tiwari v. Union of India, 2023 LiveLaw (SC) 160 : AIR 2023 SC 1196 : (2023) 4 SCC 332 : (2023) 2 SCR 951 : 2023 INSC 191

Company Secretary's Liability: Supreme Court says compliance officer should ensure compliance with SEBI's buyback regulations. Securities and Exchange Board of India v. V. Shankar, 2023 LiveLaw (SC) 101 : 2023 INSC 719

Supreme Court sets aside SAT order absolving Company Secretary of liability relating to violations of buyback regulations- says Compliance Officer has to ensure compliance- Asks SAT to reexamine liability. Securities and Exchange Board of India v. V. Shankar, 2023 LiveLaw (SC) 101 : 2023 INSC 719

Section 59 Companies Act 2013 - NCLT cannot excercise parallel jurisdiction with SEBI for addressing violations of SEBI Regulations. IFB Agro Industries Ltd. v. SICGIL India Ltd., 2023 LiveLaw (SC) 8 : AIR 2023 SC 247 : (2023) 4 SCC 209 : (2023) 1 SCR 527 : 2023 INSC 9

Companies Act, 2013; Section 59 - Rectificatory jurisdiction of NCLT - Summary in nature and not intended to be exercised where there are contested facts and disputed questions - Transactions falling within the jurisdiction of Regulatory bodies created under a statute must necessarily be subjected to their exante scrutiny, enquiry and adjudication - NCLT under Section 59 cannot excercise a parallel jurisdiction with SEBI for addressing violations of SEBI Regulations. (Para 1, 18) IFB Agro Industries Ltd. v. SICGIL India Ltd., 2023 LiveLaw (SC) 8 : AIR 2023 SC 247 : (2023) 4 SCC 209 : (2023) 1 SCR 527 : 2023 INSC 9

Community Certificate

Affinity test is not a litmus test to decide a caste claim and is not an essential part in the process of the determination of correctness of a caste or tribe claim in every case - Affinity test cannot be conclusive either way. When an affinity test is conducted by the Vigilance Cell, the result of the test along with all other material on record having probative value will have to be taken into consideration by the Scrutiny Committee for deciding the caste validity claim. Mah. Adiwasi Thakur Jamat Swarakshan Samiti v. State of Maharashtra, 2023 LiveLaw (SC) 241 : AIR 2023 SC 1657 : 2023 INSC 286

Court is appalled at the treatment given to the Appellant by the Respondents herein. The Appellant, before applying to the post reserved for ST candidates supplied all documents required in support of his claim as a ST candidate, and got the documents verified and approved. After being given employment however, the re-evaluation of the authenticity of the documents of the Appellant have been kept pending for 19 years, dangling like a sword on the Appellants head. (Para 13) Community Certificate - The exercise of verification of community certificate must be completed expeditiously. (Para 16) R. Sundaram v. Tamilnadu State Level Scrutiny Committee, 2023 LiveLaw (SC) 207 : 2023 INSC 249 : (2023) 2 SCR 1037

A community certificate in cases of scheduled tribe communities, unlike any other piece of paper, is an acknowledgment of a person belonging to a community which has faced years of oppression. The Constitution of India guarantees certain rights to people from Scheduled Tribe communities on grounds of historical injustice, and for the translation of such rights from paper to real life, the community certificate in most cases becomes an essential document. This certificate, whilst being an acknowledgment of history, is also a document that tries to rectify such historical injustice by becoming a tool that fabricates constitutional rights into reality. In such a scenario where the validity of a community certificate is put to question, keeping in mind the importance of the document and the effect it has on people's rights, the proceedings questioning the document cannot, except in the most exceptional circumstances, be done ex-parte. (Para 22) R. Sundaram v. Tamilnadu State Level Scrutiny Committee, 2023 LiveLaw (SC) 207 : 2023 INSC 249 : (2023) 2 SCR 1037

Competition Act, 2002

Competition Act, 2002 - Coal India Ltd. would come under the purview of the Act despite being a Public Sector Undertaking. Coal India Ltd v. Competition Commission of India, 2023 LiveLaw (SC) 484 : AIR 2023 SC 3122 : 2023 INSC 580

Constitutional Law

Article 299 | No immunity from statute merely because a contract is entered in the President's name. Glock Asia-Pacific Ltd. v. Union of India, 2023 LiveLaw (SC) 459 : AIR 2023 SC 2777 : 2023 INSC 568

The Writ Court cannot stop implementation of a statutory provision without holding it unconstitutional. Dhanraj v. Vikram Singh, 2023 LiveLaw (SC) 456

Non-tribal person's right to settle down & vote in scheduled areas not taken away by 5th schedule of Constitution. Adivasis for Social and Human Rights Action v. Union of India, 2023 LiveLaw (SC) 431 : AIR 2023 SC 2658 : 2023 INSC 512

GNCTD vs LG: Supreme Court holds Delhi Govt has control over "services" excluding Public Order, Police & Land. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423 : AIR 2023 SC 2881 : 2023 INSC 517

Delhi Govt vs LG | Democratically elected Govt. should have power to control its officers to ensure accountability. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423 : AIR 2023 SC 2881 : 2023 INSC 517

"Governance of States can't be taken over by Union': Supreme Court underscores importance of federalism in Delhi Govt vs LG Case. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423 : AIR 2023 SC 2881 : 2023 INSC 517

Precedents - While it is open to a learned Judge to differ with a view of a Co-ordinate Bench the sequitur is to make a reference to a larger Bench on papers being placed before the learned Chief Justice. The learned Judge cannot simply say "with due respect, I do not agree to the ratio..." or “the decision is per incuriam as a binding judgment of the Supreme Court has not been considered….” and proceed to take a contrary view - Such an approach would result in conflicting opinions of Coordinate Benches, resulting in judicial chaos and is, thus, improper. This is something atrocious and unacceptable. (Para 81) State v. Hemendhra Reddy, 2023 LiveLaw (SC) 365 : 2023 INSC 460

Domicile Reservation - Domicile reservation can't be wholesale reservation - Supreme Court asks MP Govt to review its 75% domicile quota in B.Ed seats - though reservation in favour of residents is permissible, yet reservation to the extent of 75% of the total seats makes it a wholesale reservation, which has been held in Pradeep Jain to be unconstitutional and violative of Article 14 of the Constitution of India. Veena Vadini Teachers Training Institute v. State of Madhya Pradesh, 2023 LiveLaw (SC) 364 : 2023 INSC 457

Governors should return bills as soon as possible: Supreme Court observes in Telangana Government's plea against governor. State of Telangana v. Governor, 2023 LiveLaw (SC) 356

'No equality in matter of illegality': Supreme Court denies relief to school teacher dismissed for degree through distance education. Sunil Kumar Soni v. State of Rajasthan, 2023 LiveLaw (SC) 271

Article 30 - Minority educational institution cannot claim exemption from admission & fee regulatory committee. Icon Education Society v. State of Madhya Pradesh, 2023 LiveLaw (SC) 202 : AIR 2023 SC 1680 : (2023) 2 SCR 728 : 2023 INSC 256

'Dialogue between constitutional functionaries cannot degenerate into a race to bottom': Supreme Court reprimands Punjab CM, Governor. State of Punjab v. Principal Secretary to the Governor of Punjab, 2023 LiveLaw (SC) 188 : 2023 INSC 181

Two important aspects of Parliamentary democracy - There are two equally important aspects for the functioning of a parliamentary democracy. First, the failure of a constitutional authority to fulfill its obligation under a distinct provision of the Constitution does not furnish a justification to another to decline to fulfill its own constitutional obligation. Second, while this Court is cognizant of the importance of free speech and expression and the fundamental value embodied in Article 19(1)(a), it becomes necessary to emphasize that constitutional discourse has to be conducted with a sense of decorum and mature statesmanship. (Para 25) State of Punjab v. Principal Secretary to the Governor of Punjab, 2023 LiveLaw (SC) 188 : 2023 INSC 181

On maintaining civility in discourses between Constitutional functionaries - Political differences in a democratic polity have to be worked upon and sorted out with a sense of sobriety and maturity. The dialogue between constitutional functionaries cannot degenerate into a race to the bottom. Unless these principles were to be borne in mind, the realization of constitutional values may be placed in jeopardy-We can only hope that mature constitutional statesmanship will ensure that such instances do not occur in the future as much as we reiterate our expectation that constitutional functionaries must be cognizant of the public trust in the offices which they occupy. The public trust which is entrusted to them is intended to sub-serve the cause of our citizens and to ensure that the affairs of the nation are conducted with a sense of equanimity so as to accomplish the objects of the Preamble to the Constitution. (Para 26) State of Punjab v. Principal Secretary to the Governor of Punjab, 2023 LiveLaw (SC) 188 : 2023 INSC 181

Article 226(2) - Supreme Court explains tests to determine if cause of action has arisen within jurisdiction of the High Court. State of Goa v. Summit Online Trade Solutions (P) Ltd, 2023 LiveLaw (SC) 184 : AIR 2023 SC 1536 : (2023) 2 SCR 247 : 2023 INSC 229

Petition under article 32 to challenge a binding judgment not maintainable. Vijayalakshmi Jha v. Union of India, 2023 LiveLaw (SC) 179

'You want to keep the country on boil? don't belittle hinduism's greatness': Supreme Court dismisses Ashwini Upadhyay's plea to rename cities. Ashwini Kumar Upadhyay v. Union of India, 2023 LiveLaw (SC) 156 : 2023 INSC 174

'A Country can't remain prisoner of past': Supreme Court dismisses plea to rename cities named after muslim rulers; stresses on India's secular character. Ashwini Kumar Upadhyay v. Union of India, 2023 LiveLaw (SC) 156 : 2023 INSC 174

Secularism - India, that is 'Bharat' in terms of the preamble, is a secular country- The governance of Bharat must conform to Rule of law, secularism, constitutionalism of which Article 14 stands out as the guarantee of both equality and fairness in the State's action. (Para 8, 9) Ashwini Kumar Upadhyay v. Union of India, 2023 LiveLaw (SC) 156 : 2023 INSC 174

Plea to rename places named after Muslim rulers - Supreme Court dismisses - The present and future of a country cannot remain a prisoner of the past- The history of any nation cannot haunt the future generations of a nation to the point that succeeding generations become prisoners of the past. (Para 9, 11) Ashwini Kumar Upadhyay v. Union of India, 2023 LiveLaw (SC) 156 : 2023 INSC 174

Fraternity - The golden principle of fraternity which again is enshrined in the preamble is of the greatest importance and rightfully finds its place in the preamble as a constant reminder to all stakeholders that maintenance of harmony between different sections alone will lead to the imbibing of a true notion of nationhood bonding sections together for the greater good of the nation and finally, establish a sovereign democratic republic. We must constantly remind ourselves that courts of law, as indeed every part of the 'State', must be guided by the sublime realisation, that Bharat is a secular nation committed to securing fundamental rights to all sections as contemplated in the Constitution. (Para 11) Ashwini Kumar Upadhyay v. Union of India, 2023 LiveLaw (SC) 156 : 2023 INSC 174

'Service as Adhoc Judges can't be considered for elevation as HC Judges': Supreme Court rejects plea of judicial officers from AP. C. Yamini v. High Court of Andhra Pradesh, 2023 LiveLaw (SC) 130 : AIR 2023 SC 1214 : 2023 INSC 155

Minority school not entitled to state grant towards salary for employee retained beyond retirement age. State of Gujarat v. H.B. Kapadia Education Trust, 2023 LiveLaw (SC) 127 : AIR 2023 SC 1155 : (2023) 2 SCR 487 : 2023 INSC 147

Indian Association for the Cultivation of Science (IACS) is a 'State' u/Article 12. Pushan Majumdar v. Union of India, 2023 LiveLaw (SC) 115

High Courts are not subordinate to the Supreme Court, they are constitutional courts. Shankar Kumar Jha v. State of Bihar, 2023 LiveLaw (SC) 114

Supreme Court dismisses challenge to delimitation in Jammu & Kashmir. Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951 : 2023 INSC 124

Article 170 of Constitution not applicable to legislatures of union territories: Supreme Court in J&K delimitation case. Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951 : 2023 INSC 124

While upholding J&K delimitation, the Supreme Court rejects comparisons with Telangana/AP & North Eastern states. Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951 : 2023 INSC 124

Parliament can convert existing state into a union territory: Supreme Court in J&K delimitation case. Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951 : 2023 INSC 124

Right to Die: Supreme Court makes it easier for persons to opt for passive euthanasia; Simplifies 2018 guidelines on living will/advance directive. Common Cause v. Union of India, 2023 LiveLaw (SC) 79 : (2023) 1 SCR 1137 : 2023 INSC 77

Excommunication among dawoodi bohras: Supreme Court refers to the nine-judge sabarimala bench. Central Board of Dawoodi Bohra Community v. State of Maharashtra, 2023 LiveLaw (SC) 97 : AIR 2023 SC 974 : (2023) 4 SCC 541 :(2023) 1 SCR 293 : 2023 INSC 115

'Excommunication is subject to constitutional morality, results in civil death': Supreme Court doubts precedent upholding right to excommunicate. Central Board of Dawoodi Bohra Community v. State of Maharashtra, 2023 LiveLaw (SC) 97 : AIR 2023 SC 974 : (2023) 4 SCC 541 :(2023) 1 SCR 293 : 2023 INSC 115

Supreme Court Constitution Bench doubts the correctness of the decision in Sardar Syedna Saifuddin v. State of Bombay, 1962 Suppl (2) SCR 496 which struck down the Bombay Prevention of Excommunication Act, 1949. Central Board of Dawoodi Bohra Community v. State of Maharashtra, 2023 LiveLaw (SC) 97 : AIR 2023 SC 974 : (2023) 4 SCC 541 :(2023) 1 SCR 293 : 2023 INSC 115

Justice Victoria Gowri's appointment: Supreme Court rejects argument that collegium was not aware of facts; says no judicial review over suitability. Anna Mathews v. Supreme Court of India, 2023 LiveLaw (SC) 93 : AIR 2023 SC 886 : (2023) 5 SCC 661 : (2023) 1 SCR 463 : 2023 INSC 122

Supreme Court dismisses petition challenging the appointment of Justice Victoria Gowri as judge of the Madras High Court - says suitability cannot be a subject matter of judicial review - collegium recommendation cannot be examined on the judicial side. Anna Mathews v. Supreme Court of India, 2023 LiveLaw (SC) 93 : AIR 2023 SC 886 : (2023) 5 SCC 661 : (2023) 1 SCR 463 : 2023 INSC 122

Supreme Court invalidates GAIL's condition imposed on IPCL, Says writ jurisdiction can be applied when contractual terms are arbitrary. Gas Authority of India Ltd. v. Indian Petrochemicals Corporation Ltd., 2023 LiveLaw (SC) 88 : AIR 2023 SC 833 : (2023) 3 SCC 629 : (2023) 2 SCR 326 : 2023 INSC 103

Purse seine fishing - Supreme Court passes restricted interim order allowing the purse-seine fishing beyond the territorial waters of Tamil Nadu but within the Exclusive Economic Zone with conditions. Fisherman Care v. Govt of Tamil Nadu, 2023 LiveLaw (SC) 58 : AIR 2023 SC 655 : 2023 INSC 82

Legislature cannot directly overrule a judgment; but can retrospectively remove its foundation to make it ineffective. Baharul Islam v. Indian Medical Association, 2023 LiveLaw (SC) 57 : AIR 2023 SC 721 : 2023 INSC 81

The Constitution does not prohibit appointment of lawyer practising in the Supreme Court as Judge of High Courts. Ashok Pandey v. Union of India, 2023 LiveLaw (SC) 5

Additional restrictions not found in Article 19(2) cannot be imposed on right to free speech. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1

Article 19 & 21 rights can be enforced against private individuals & entities: Supreme Court holds by 4:1 majority. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1 : 2023 INSC 4

No one can be penalised for holding an opinion not in confirmity with constitutional values. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1 : 2023 INSC 4

Minister's speech a 'constitutional tort' if it leads to acts of officers harming persons. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1 : 2023 INSC 4

The Prime Minister / Chief Minister does not have disciplinary control over other ministers. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1 : 2023 INSC 4

Ministers' Statements in official capacity cannot be vicariously attributed to Govt: Supreme Court; Justice Nagarathna dissents. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1 : 2023 INSC 4

Constitution of India, 1950

Constitution of India, 1950 – Floor Test - the decision to call for a floor test should be based on objective material and reasons which are relevant and germane to the exercise of discretion, and not extraneous to it. The Governor should not use their discretionary power to destabilise or displace democratically elected governments. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Constitution of India, 1950 – Governor - The discretion vested in the Governor to call for a floor test is not unfettered, and must be exercised with circumspection, in accordance with the limits placed on it by law. The Governor is a constitutional functionary who derives his authority from the Constitution. This being the case, the Governor must be cognizant of the constitutional bounds of the power vested in him. He cannot exercise a power that is not conferred on him by the Constitution or a law made under it. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Constitution of India, 1950 – Governor - The power of the Governor to act without the aid and advice of the Council of Ministers is of an extraordinary nature. The exercise of such power has ramifications on parliamentary democracy. Hence, the ambit of the exercise of such power by the Governor must be calibrated to meet the exigencies of situations where the Governor is satisfied on the basis of objective material that there is sufficient cause to warrant the exercise of their extraordinary power. The discretion to call for a floor test is not an unfettered discretion but one that must be exercised with circumspection, in accordance with the limits placed on it by law. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Constitution of India, 1950 - In the absence of specific pleadings, a writ court cannot get into the issues of repugnancy or lack of legislative competence. Unless the statutory provision is declared unconstitutional, its implementation cannot be stopped. Dhanraj v. Vikram Singh, 2023 LiveLaw (SC) 456

Constitution of India, 1950 - It is the "political party" which has the power to appoint a whip and the leader and not the "legislature party". Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Constitution of India, 1950 - Shiv Sena rift – At the highest, the various communications expressed the fact that a faction of MLAs disagreed with some policy decisions of the party. The course of action they wished to adopt in order to air their grievances and redress them was, at the time the floor test was directed to be conducted, uncertain. Whether they would choose to enter deliberations with their colleagues in the House or in the political party, or mobilise the cadres, or resign from the Assembly in protest, or opt to merge with another party, was uncertain. Therefore, the Governor erred in relying upon the resolution signed by a faction of the SSLP (Shiv Sena Legislature Party) MLAs to conclude that Mr. Thackeray had lost the support of the majority of the House. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Constitution of India, 1950 - Shiv Sena rift – Floor Test - Governor cannot enter political arena, floor test not to decide intra-party disputes - The Governor could not have entered the internal party dispute by ordering the floor test, particularly in absence of any "objective material" to dislodge the presumption of confidence of House ingrained in a democratically elected government. The letters by some MLAs (or even by then Leader of Opposition in this case) for a direction to the Chief Minister to prove his majority does not, taken alone, amount to a relevant reason to call for a floor test. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Constitution of India, 1950 - Shiv Sena rift – Floor Test - Neither the Constitution nor the laws enacted by Parliament provide for a mechanism by which disputes amongst members of a particular political party can be settled. They certainly do not empower the Governor to enter the political arena and play a role (however minute) either in inter-party disputes or in intra-party disputes. It follows from this that the Governor cannot act upon an inference that he has drawn that a section of the Shiv Sena wished to withdraw their support to the Government on the floor of the House. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Constitution of India, 1950 - Shiv Sena rift – Floor Test - the decision taken by the Governor to call for a floor test based on the rebellion of Eknath Shinde-led faction and to direct then CM Uddhav Thackeray to prove his majority on the floor of the House, was wrong. The Governor had no objective material on the basis of which he could doubt the confidence of the incumbent government. The resolution on which the Governor relied did not contain any indication that the MLAs wished to exit from the MVA government. The communication expressing discontent on the part of some MLAs is not sufficient for the Governor to call for a floor test. The Governor ought to apply his mind to the communication (or any other material) before him to assess whether the Government seemed to have lost the confidence of the House. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Constitution of India, 1950 - Shiv Sena rift – The Court cannot order the restoration of the Uddhav Thackeray government as he resigned without facing a floor test. Since Thackeray voluntarily resigned, the Governor was right in inviting Ekanth Shinde form the government with the support of BJP. Had Mr. Thackeray refrained from resigning from the post of the Chief Minister, this court could have considered the grant of the remedy of reinstating the government headed by him. The Court cannot quash a resignation which was voluntarily tendered. The Governor's earlier decision to order a floor test for the Maha Vikas Aghadi government as well as the Speaker's decision to appoint the whip nominated by Shinde group were incorrect. The correctness of the decision in Nabam Rebia is referred to a larger Bench of seven judges. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Constitution of India, 1950 - The Supreme Court upheld the constitutional validity of the State amendments made to the central law Prevention of Cruelty to Animals Act by the States of Tamil Nadu, Karnataka and Maharashtra to allow the conduct of animal sports like Jalikattu, Kambala and bull-cart racing in these respective States. These amendments were passed by the States after the Supreme Court in 2014 banned jallikettu and similar activities in the case Animal Welfare Board of India v. A. Nagaraja And Ors. These laws cannot be construed as "colourable legislations" and that the State legislature had the legislative power to make these amendments as per Entry 17 to List III of the Seventh Schedule. These amendments do not go contrary to the ratio of the judgment in Nagaraja. These laws cure the defects pointed out by the judgment in Nagaraja. The effect of these laws is to minimise the pain and suffering caused to animals. The amendments, having received the assent of the President, cannot be faulted. Animal Welfare Board of India v. Union of India, 2023 LiveLaw (SC) 447 : AIR 2023 SC 2612 : 2023 INSC 548

Constitution of India, 1950 - the state shall make all possible efforts to ensure equitable access to health services. These efforts must be made to progressively realise the right of everyone to the enjoyment of the highest attainable standards of physical and mental health, as acknowledged in international conventions and agreements. However, notwithstanding the right of the state to devise policies for public health and medical education with due regard to peculiar social and financial conditions, policies that cause an unfair disadvantage towards any class of citizens, ought not be formulated. Baharul Islam v. Indian Medical Association, 2023 LiveLaw (SC) 57 : AIR 2023 SC 721 : 2023 INSC 81

Constitution of India, 1950 - The citizens residing in rural areas have an equal right to access healthcare services by duly qualified staff. Policies for enhancing access to rural healthcare must not short-change. The citizens residing in rural areas are subjected to direct and indirect forms of discrimination on the basis of their place of birth or residence. Any variation in the standards of the qualifications required of medical practitioners who render services in rural areas qua those rendering services in urban and metropolitan areas circumscribe constitutional values of substantive equality and non-discrimination. Baharul Islam v. Indian Medical Association, 2023 LiveLaw (SC) 57 : AIR 2023 SC 721 : 2023 INSC 81

Constitution of India, 1950 - Constitution does not prohibit lawyers practicing in the Supreme Court to be appointed as a Judge of the High Court - in fact, the Supreme Court has given imprimatur to the principle that in suitable cases Advocates practicing in the Supreme Court can be considered for appointment to the High Court. Ashok Pandey v. Union of India, 2023 LiveLaw (SC) 5

Constitution of India, 1950 - Constitutional Tort - A mere statement made by a minister inconsistent with the rights of a citizen of Part III of the Constitution may not constitute a violation of constitutional rights and become actionable as a constitutional tort. But, if as a consequence of such a statement, any act of omission or commission is done by the officers resulting in harm or loss to a person or citizen, then the same may be actionable as a constitutional tort. [Justice Nagarathna dissents] Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1 : 2023 INSC 4

Constitution of India, 1950 - Whether Minister's statement can be vicariously attributed to government - A statement made by a minister even if traceable to any affairs of the state or for protection of the government cannot be attributed vicariously to the government by invoking the principle of collective responsibility- Justice Nagarathna dissents to hold that statements in official capacity reflecting views of the govt can be vicariously attributed to the govt. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1 : 2023 INSC 4

Article 3 - Formation of new States and alteration of areas, boundaries or names of existing States

Constitution of India, 1950; Article 3, 4, 239A - Parliament by making a law can convert an existing State into one or more Union territories. Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951 : 2023 INSC 124

Article 4 - Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters

Constitution of India, 1950; Article 3, 4, 239A - Parliament is empowered by law to create a body of legislature for the Union territories of Puducherry and J&K.- Even if the law made by Parliament creating a body of legislature for Union territories of Puducherry and J&K has the effect of amending certain parts of the Constitution, it shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951 : 2023 INSC 124

Article 12 – Definition “the State''

Constitution of India, 1950; Article 12 - Indian Association for the Cultivation of Science (IACS) answers to the description of “the State” within the meaning of Article 12 of the Constitution of India, for it being financially, functionally and administratively under the control of the Government of India. Pushan Majumdar v. Union of India, 2023 LiveLaw (SC) 115

Article 14 - Equality before law

Constitution of India, 1950; Article 14 and 32 - Gujarat State Judicial Service Rules, 2005; Rule 5 - Promotion of Senior Civil Judges to the Cadre of District Judge (65% quota) - It is required to be noted that in the present case and as per the merit list produced before the High Court, the candidates, who have secured much more marks are denied promotion and the candidates / Civil Judge (Senior Division), who are having less marks / leas meritorious are promoted. In the present case, the petitioner No. 1 secured 135.50 out of 200 marks and the petitioner No. 2 secured 148.50 marks out of 200 against which a candidate having secured 101 marks have got the promotion, which is affecting the principle of “merit-cum-seniority”. Thus, we are more than satisfied that the impugned Select List dated 10.03.2023 issued by the High Court and the subsequent Notification dated 18.04.2023 issued by the State Government granting promotion to the cadre of District Judge are illegal and contrary to the relevant Rules and Regulations and even to the decision of this Court in the case of All India Judges' Association and Ors. (supra). Therefore, we are more than prima facie satisfied that the same as such are not sustainable. Ravikumar Dhansukhlal Maheta v. High Court of Gujarat, 2023 LiveLaw (SC) 426 : AIR 2023 SC 2328 : 2023 INSC 532

Constitution of India, 1950; Articles 14 and 16 - Whether different scales of pay can be fixed for officers appointed to the same cadre, on the basis of educational qualifications possessed by them? - the issue is no longer res integra - classification based on educational qualification is not violative of Articles 14 and 16 of the Constitution of India. State of Gujarat v. Dr. P.A. Bhatt, 2023 LiveLaw (SC) 350 : AIR 2023 SC 2164 : 2023 INSC 434

Constitution of India, 1950; Article 14 - Doctrine of Equality - there cannot be equality in the matter of illegality - can't claim benefit of illegal orders passed in the cases of other persons - denies relief to school teacher who secured bachelor's degree through distance education. Sunil Kumar Soni v. State of Rajasthan, 2023 LiveLaw (SC) 271

Constitution of India, 1950; Article 14 - Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation, which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. (Para 13.2) Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28 : (2023) 5 SCC 717 : 2023 INSC 29

Constitution of India, 1950; Article 14 - classification between Pushtaini and Gair-pushtaini Landowners is based on one class of landowners being sons of the soil, while the other class being mere landowners, who are not directly attached to the land- not reasonable classification- The justification given by the GNOIDA Authority, and the Full-bench of the High Court assumes that only Pushtaini landowners permanently reside in the subject land or that the subject land is the primary source of income only for Pushtaini landowners, and this assumption has been backed by no empirical data produced by the authority-t. Many Gair-pushtaini landholders, whose main area of residence or their main source of income is also the subject land, would be subject to great discrimination and injustice, if the same compensation that has been granted to the pushtaini landholders is not extended to them. (Para 38 to 40) Ramesh Chandra Sharma v. State of Uttar Pradesh, 2023 LiveLaw (SC) 123 : AIR 2023 SC 1117 : (2023) 2 SCR 422 : 2023 INSC 144

Constitution of India, 1950; Article 14 - Equality test for permissible amendments – Right to Equality – Even permissible amendments would have to be tested on the touchstone of the right to equality enshrined in Article 14 of the Constitution – Reducing cut-off marks only for the purpose of providing employment to a particular category when other candidates had already acquired some right – Held, violative of right to equality being based not on objective criteria such as the candidates' suitability but on extraneous reasons namely to accommodate otherwise ineligible candidates – Further held, cut-off marks could not be reduced in the absence of a sound reason that would indicate that the reduced marks also would be sufficient to determine suitability for appointment to advertised posts. (Paras 25, 30) Sureshkumar Lalitkumar Patel v. State of Gujarat, 2023 LiveLaw (SC) 137 : (2023) 2 SCR 543 : 2023 INSC 145

Constitution of India, 1950; Article 14 - Supreme Court holds the condition imposed by GAIL on IPCL to be arbitrary- the contractual exercise of providing such a clause runs contrary to every commercial and common sense and is manifestly arbitrary, as IPCL is not being charged under any general terms but for a specific purpose. This purpose cannot exist in the contract in view of the master authority, i.e., the Union of India, providing to the contrary. (Para 21) Gas Authority of India Ltd. v. Indian Petrochemicals Corporation Ltd., 2023 LiveLaw (SC) 88 : AIR 2023 SC 833 : (2023) 3 SCC 629 : (2023) 2 SCR 326 : 2023 INSC 103

Constitution of India, 1950; Article 14 - Test of classification - To survive the rigors of Article 14, the impugned classification must not only make it through the test of reasonableness, but also clear the Wednesbury Principle, and by extension the Proportionality test. (Para 41) Ramesh Chandra Sharma v. State of Uttar Pradesh, 2023 LiveLaw (SC) 123 : AIR 2023 SC 1117 : (2023) 2 SCR 422 : 2023 INSC 144

Constitution of India, 1950; Article 14 - Test of Proportionality - The classification, as discussed above, if allowed to exist, can lead to several Gair-pushtaini landowners who may also need to be rehabilitated, cannot rehabilitate themselves without compensation for the same. Such a mischief, if allowed to exist, would not only nullify the purpose of the Act, but also violate the third and fourth principle of the proportionality test, and hence is liable to be struck down. (Para 55) Ramesh Chandra Sharma v. State of Uttar Pradesh, 2023 LiveLaw (SC) 123 : AIR 2023 SC 1117 : (2023) 2 SCR 422 : 2023 INSC 144

Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Constitution of India, 1950; Article 14, 15 - The female heirs, subject to the statutory rule operating in that field, are required to be treated equally to the male heirs. Gender equality is recognised by the world community in general in the human rights regime - Exclusion of women from inheritance on the ground of gender was a clear violation of the constitutional prohibition against unfair discrimination. (Para 15) Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28 : (2023) 5 SCC 717 : 2023 INSC 29

Article 19 - Protection of certain rights regarding freedom of speech, etc.

Constitution of India, 1950; Article 19(1)(e) - Whether a non-Tribal has the right to settle down in a Scheduled Area – Held, every citizen has a right to reside and settle in any part of the territory of India. However, by making a law, reasonable restrictions can be put on the said Fundamental Right as provided in Clause (5) of Article 19. Therefore, we reject the argument that non-Tribals have no right to settle down in a Scheduled Area. (Para 14) Adivasis for Social and Human Rights Action v. Union of India, 2023 LiveLaw (SC) 431 : AIR 2023 SC 2658 : 2023 INSC 512

Constitution of India, 1950; Article 19(2) - the non-renewal of permission to operate a media channel is a restriction on the freedom of the press which can only be reasonably restricted on the grounds stipulated in Article 19(2) of the Constitution. The reasons for denying a security clearance to MBL, that is, its alleged antiestablishment stance and the alleged link of the shareholders to JEIH, are not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution. In any event, there was no material to demonstrate any link of the shareholders, as was alleged. Principles of Natural Justice - The principles of natural justice ensure that justice is not only done but it is seen to be done as well. A reasoned order is one of the fundamental requirements of fair administration. (Para 56) Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269 : 2023 INSC 324

Constitution of India, 1950; Article 19(a) - Press Freedom - An independent press is vital for the robust functioning of a democratic republic - Its role in a democratic society is crucial for it shines a light on the functioning of the state. The press has a duty to speak truth to power, and present citizens with hard facts enabling them to make choices that propel democracy in the right direction. The restriction on the freedom of the press compels citizens to think along the same tangent. A homogenised view on issues that range from socioeconomic polity to political ideologies would pose grave dangers to democracy. The critical views of the Channel, Media-One on policies of the government cannot be termed, 'anti-establishment'. The use of such a terminology in itself, represents an expectation that the press must support the establishment. The action of the MIB by denying a security clearance to a media channel on the basis of the views which the channel is constitutionally entitled to hold produces a chilling effect on free speech, and in particular on press freedom. (Para 166 and 167) Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269 : 2023 INSC 324

Constitution of India, 1950; Article 19(1)(a) - The grounds lined up in Article 19(2) for restricting the right to free speech are exhaustive. Under the guise of invoking other fundamental rights or under the guise of two fundamental rights staking a competing claim against each other, additional restrictions not found in Article 19(2) cannot be imposed on the exercise of the right conferred by Article 19(1)(a) - Constitution Bench judgment- Justices S Abdul Nazeer, BR Gavai, AS Bopanna, V Ramasubramanian and BV Nagarathna unanimous. [Para 155, Majority judgment] Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1 : 2023 INSC 4

Constitution of India, 1950; Articles 19 & 21 - Horizontal Application - A fundamental right under Article 19 or 21 can be enforced even against persons other than the state or its instrumentalities - Justice BV Nagarathna dissents to say only habeas corpus remedy can be horizontally applied against private persons. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1 : 2023 INSC 4

Article 20 - Protection in respect of conviction for offences

Constitution of India, 1950; Article 20 (2) - Code of Criminal Procedure, 1973; Section 173(8) - Further investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over - Investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation. (Para 77) State v. Hemendhra Reddy, 2023 LiveLaw (SC) 365 : 2023 INSC 460

Constitution of India, 1950; Article 20(1) - the legal position to be taken into consideration is that an Amendment Act cannot post facto criminalize possession. This proposition does not require much deliberation and is well settled that retroactive criminal legislation being violative of Article 20(1), one of the fundamental rights guaranteed under part III of the Constitution is prohibited. Swetab Kumar v. Ministry of Environment, Forest and Climate Change, 2023 LiveLaw (SC) 245 : 2023 INSC 301

Article 21 - Protection of life and personal liberty

Constitution of India, 1950; Article 21 - The right to health is an intrinsic element of the right to life under Article 21 of the Constitution. Life, to be enjoyed in all its diverse elements, must be based on robust conditions of health. There has been a serious violation of the fundamental rights of the women who underwent unnecessary hysterectomies. Dr. Narendra Gupta v. Union of India, 2023 LiveLaw (SC) 310 : 2023 INSC 322

Constitution of India, 1950; Article 21 - Whether, given the language employed under Section 385 of the Code of Criminal Procedure, 1973, the present situation constitutes a violation of the accused's fundamental rights? Held, Protection of the rights under Article 21 entails protection of liberty from any restriction thereupon in the absence of fair legal procedure. Fair legal procedure includes the opportunity for the person filing an appeal to question the conclusions drawn by the trial court. The same can only be done when the record is available with the Court of Appeal. That is the mandate of Section 385 of the CrPC. Therefore, it is not within prudence to lay down a straightjacket formula, held that non­compliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India. (Para 35) Jitendra Kumar Rode v. Union of India, 2023 LiveLaw (SC) 347 : 2023 INSC 419

Constitution of India, 1950; Article 21 - Right to die with dignity - Passive Euthanasia - Supreme Court Constitution Bench simplifies the procedure for executing living will/advance directive by modifiying the he judgment reported in Common Cause (A Registered Society) v. Union of India and Another (2018) 5 SCC 1 - the Court allows the application filed by Indian Society of Critical Care Medicine seeking clarification of the judgment. Common Cause v. Union of India, 2023 LiveLaw (SC) 79 : (2023) 1 SCR 1137 : 2023 INSC 77

Constitution of India, 1950; Article 21 – The State is under a duty to affirmatively protect the rights of a person under Article 21 even against a threat to the liberty of a citizen by the acts or omissions of another citizen or private agency. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1 : 2023 INSC 4

Constitution of India, 1950; Article 14, 15, 21 - Income Tax Act, 1961; Section 10(26AAA) - The exclusion of Old Indian settlers, who have permanently settled in Sikkim prior to merger of Sikkim with India on 26.04.1975 from the definition of “Sikkimese” in Section 10(26AAA) is hereby held to be ultra vires to Article 14 of the Constitution of India and is hereby struck down. (Para 13- 17) Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28 : (2023) 5 SCC 717 : 2023 INSC 29

Constitution of India, 1950; Article 14, 15, 21 - Income Tax Act, 1961; Section 10(26AAA) Proviso - Proviso to Section 10(26AAA) inasmuch as it excludes from the provision of exemption a Sikkimese woman merely because she marries a non-Sikkimese after 01.04.2008 is totally discriminatory and violative of Articles 14, 15 and 21 of the Constitution of India - A woman is not a chattel and has an identity of her own, and the mere factum of being married ought not to take away that identity. (Para 15-17.1) Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28 : (2023) 5 SCC 717 : 2023 INSC 29

Article 22 - Protection against arrest and detention in certain cases

Constitution of India, 1950; Article 22 (5) - illegible documents given to the detenue in preventive detention can cause prejudice in submitting a representation. This violates the principles under Article 22(5) of the Constitution of India, where the detaining authority must explain the grounds of detention in a language understood by the detenue. (Para 39) Pramod Singla v. Union of India, 2023 LiveLaw (SC) 293 : (2023) 2 SCR 793 : 2023 INSC 344

Article 25 - Freedom of conscience and free profession, practice and propagation of religion

Constitution of India, 1950; Articles 25, 26 - Even assuming that the excommunication of members of the Dawoodi Bohra community is always made on religious grounds, the effect and consequences thereof, on the person excommunicated needs to be considered in the context of justiciable Constitutional rights. The excommunication will have many civic consequences which will, prima facie, affect his fundamental right to live with dignity and the right to lead a meaningful life guaranteed by Article 21. Therefore, the question is is whether the said right of the community to excommunicate its members can be balanced with the other fundamental rights under Part III of the Constitution and in particular, Article 21. (Para 31) Central Board of Dawoodi Bohra Community v. State of Maharashtra, 2023 LiveLaw (SC) 97 : AIR 2023 SC 974 : (2023) 4 SCC 541 :(2023) 1 SCR 293 : 2023 INSC 115

Constitution of India, 1950; Articles 25, 26 - the protection under Article 26(b) granted by the decision in the case of Sardar Syedna1 to the power to excommunicate a member of the Dawoodi Bohra community, needs reconsideration as the said right is subject to morality which is understood as Constitutional morality-This issue will require examination by a larger Bench. (Para 28) Central Board of Dawoodi Bohra Community v. State of Maharashtra, 2023 LiveLaw (SC) 97 : AIR 2023 SC 974 : (2023) 4 SCC 541 :(2023) 1 SCR 293 : 2023 INSC 115

Constitution of India, 1950; Articles 25, 26 - Right to Excommunicate - prima facie, we find that the exercise of balancing the rights under Article 26(b) with other rights under Part III and in particular Article 21 was not undertaken by the Constitution Bench in the case of Sardar Syedna- This question is substantially in issue before the Bench of nine Judges in Sabrimala Temple Review . Moreover, the question whether the protection can be given by Article 26(b) to the practice of excommunication is to be tested on the touchstone of the concept of Constitutional morality as the said right is subject to morality. (Para 34) Central Board of Dawoodi Bohra Community v. State of Maharashtra, 2023 LiveLaw (SC) 97 : AIR 2023 SC 974 : (2023) 4 SCC 541 :(2023) 1 SCR 293 : 2023 INSC 115

Constitution of India, 1950; Articles 32, 226, 227 - Judicial Review of Disciplinary Proceedings - In exercise of powers of judicial review interfering with the punishment of dismissal on the ground that it was disproportionate, the punishment should not be merely disproportionate but should be strikingly disproportionate - Only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review - Even in a case where the punishment is found to be disproportionate to the misconduct committed and proved the matter is to be remitted to the disciplinary authority for imposing appropriate punishment/penalty which as such is the prerogative of the disciplinary authority. (Para 6-7) Union of India v. Const. Sunil Kumar, 2023 LiveLaw (SC) 49 : AIR 2023 SC 554 : (2023) 1 SCR 961 : 2023 INSC 55

Article 30 - Right of minorities to establish and administer educational institutions

Constitution of India, 1950; Article 30 - If an employee is continued in service by the management of any registered minority Secondary School receiving Grant-in-Aid from the State-Government, then such school would not be entitled to receive any grant in respect of the expenditure incurred for continuing such employee beyond the stipulated superannuation age. State of Gujarat v. H.B. Kapadia Education Trust, 2023 LiveLaw (SC) 127 : AIR 2023 SC 1155 : (2023) 2 SCR 487 : 2023 INSC 147

Constitution of India, 1950; Article 30(1) - It is not open to the appellant society to claim complete immunity in undertaking this exercise and seek exemption from any interference by the Admission and Fee Regulatory Committee. (Para 16) Icon Education Society v. State of Madhya Pradesh, 2023 LiveLaw (SC) 202 : AIR 2023 SC 1680 : (2023) 2 SCR 728 : 2023 INSC 256

Constitution of India, 1950; Article 30(1) - Setting up a reasonable fee structure is also a component of the right to establish and administer an institution, within the meaning of Article 30(1) of the Constitution, and every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly or in any form - it is permissible to regulate admission and fee structure for achieving that purpose. (Para 12) Icon Education Society v. State of Madhya Pradesh, 2023 LiveLaw (SC) 202 : AIR 2023 SC 1680 : (2023) 2 SCR 728 : 2023 INSC 256

Article 32 - Remedies for enforcement of rights

Constitution of India, 1950; Article 32, 226 - The parties should not be permitted to file a writ petition under Article 32 of the Constitution of India, or for that matter under Article 226 of the Constitution of India before the High Court, and seek divorce on the ground of irretrievable breakdown of marriage. (Para 41) Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375 : 2023 INSC 468

Constitution of India, 1950; Article 32 - Plea to restore concession in railway tickets for senior citizens – Cannot entertain the petition under Article 32 of the Constitution of India as the matter involves the policy decision of the Railways whether to restore the railway concession to senior citizens as was done before on the ground of being a welfare State - the matter involving a fiscal issue, it would not be appropriate for this Court to issue writ of this nature, the petitioner seeks and it is for the Government to take a call on the policy decision keeping in mind the needs of the senior citizens and the fiscal repercussions - The writ petition is dismissed. M.K. Balakrishnan v. Union of India, 2023 LiveLaw (SC) 370

Constitution of India, 1950; Article 32 - A petition under Article 32 of the Constitution cannot be maintained in order to challenge a binding judgment of the Supreme Court. Vijayalakshmi Jha v. Union of India, 2023 LiveLaw (SC) 179

Constitution of India, 1950; Article 32 - It is trite law that this Court in the exercise of its jurisdiction under Article 32 of the Constitution cannot issue a mandamus to Parliament to legislate nor does it legislate. The constitutional power to legislate is entrusted to Parliament or, as the case may, the State Legislatures under Articles 245 and 246 of the Constitution - Supreme Court refuses to entertain pleas to increase age of marriage for women as 21 years. Ashwini Kumar Upadhyay v. Union of India, 2023 LiveLaw (SC) 143

Constitution of India, 1950; Article 32 - Plea of Supreme Court Bar Association for conversion of plot allotted to the Court as lawyers' chambers cannot be entertained on the judicial side - However, matter left open to be considered on the administrative side. Supreme Court Bar Association v. Ministry of Urban Development, 2023 LiveLaw (SC) 236 : 2023 INSC 278

Constitution of India, 1950; Article 32 - SC refuses to entertain petition seeking a framework which would allow citizens to petition directly to the Parliament - The reliefs which have been sought fall exclusively within the domain of Parliament. Such directions cannot be issued by this Court in the exercise of its jurisdiction under Article 32 of the Constitution. Karan Garg v. Union of India, 2023 LiveLaw (SC) 235

Constitution of India, 1950; Article 32 - while exercising power of judicial review cannot issue a writ of certiorari quashing the recommendation, or mandamus calling upon the Collegium of the Supreme Court to reconsider its decision - it would amount to evaluating and substituting the decision of the Collegium, with individual or personal opinion on the suitability and merits of the person. [Para 10] Anna Mathews v. Supreme Court of India, 2023 LiveLaw (SC) 93 : AIR 2023 SC 886 : (2023) 5 SCC 661 : (2023) 1 SCR 463 : 2023 INSC 122

Constitution of India, 1950; Article 32, 226 - Prevention of Money-laundering Act, 2002; Section 3 - The issue of territorial jurisdiction cannot be decided in a writ petition, especially when there is a serious factual dispute about the place/places of commission of the offence - This question should be raised by the petitioner before the Special Court, since an answer to the same would depend upon evidence as to the places where any one or more of the processes or activities mentioned in Section 3 were carried out. (Para 46) Rana Ayyub v. Directorate of Enforcement, 2023 LiveLaw (SC) 86 : AIR 2023 SC 875 : (2023) 4 SCC 357 : 2023 INSC 101

Article 51A – Fundamental Duties

Constitution of India, 1950; Article 51A - casts an obligation on every citizen, and more so on every judge, to promote harmony, spirit of common brotherhood among all transcending religious, linguistic, regional or sectional diversities. [Para 12] Anna Mathews v. Supreme Court of India, 2023 LiveLaw (SC) 93 : AIR 2023 SC 886 : (2023) 5 SCC 661 : (2023) 1 SCR 463 : 2023 INSC 122

Article 77 - Conduct of business of the Government of India

Constitution of India, 1950; Article 77 - A notification which is not in compliance with clause (1) of Article 77 is not invalid, unconstitutional or non-est for that reason alone. Rather, the irrebuttable presumption that the notification was issued by the President of India (acting for the Union Government) is no longer available to the Union Government. The notification continues to be valid and it is open to the Union Government to prove that the order was indeed issued by the appropriate authority. (Para 101) Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216 : 2023 INSC 271

Constitution of India, 1950; Article 77 - the notification dated 2 August 2019 was not issued in the name of the President. However, this does not render the notification invalid. The effect of not complying with Article 77 is that the Union Government cannot claim the benefit of the irrebuttable presumption that the notification dated 2 August 2019 was issued by the President. Hence, the appellants' argument that the notification dated 2 August 2019 is invalid and unconstitutional is specious. (Para 102) Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216 : 2023 INSC 271

Article 131 - Original jurisdiction of the Supreme Court

Constitution of India, 1950; Article 131 - Lotteries (Regulation) Act, 1998; Sections 5, 6, 7, 8 and 9 - Lotteries (Regulation) Rules, 2010; Rule 5 – Constitutional Validity of – Decision of Larger Bench pending - It is the contention of the Union of India and several of the impleaded States that this suit is not maintainable - No doubt, if this Court is required to decide the constitutional validity of the impugned provisions of the Act of 1998, it may be necessary to await the decision of the Larger Bench, but not otherwise. Therefore, at this stage, it would be premature to nonsuit the State of Meghalaya on the ground that this suit is not maintainable or to keep it on hold for all purposes, pending the decision of the Larger Bench. As the State of Meghalaya seeks to assert its right to do business in lotteries under Article 298(b) and its executive power to do so would be subject to parliamentary legislation, viz., the Act of 1998, the grievances raised by it in that context would constitute disputes which fall squarely within the four corners of Article 131 of the Constitution. The position that emerges is that the suit of the present nature and in its present form cannot be dismissed at the threshold as not maintainable. (Para 13 - 15) State of Meghalaya v. Union of India, 2023 LiveLaw (SC) 427 : 2023 INSC 522

Article 136 - Special leave to appeal by the Supreme Court

Constitution of India, 1950; Article 136 - Concurrent finding of fact does not call for interference in an appeal under Article 136 of the Constitution of India in the absence of any valid ground for interference. (Para 3) Baini Prasad v. Durga Devi, 2023 LiveLaw (SC) 78 : AIR 2023 SC 894 : 2023 INSC 95

Constitution of India, 1950; Article 136 - It is true that concurrent findings of facts of the Courts below, are usually, not to be interfered with. However, it is only in the presence of exceptional circumstances, this Court exercises its wide powers where there is travesty of justice and when absurd and erroneous conclusions are drawn by the Courts below. We are of the opinion that this is one such case fit for exercising the powers entrusted to us as a duty under Article 136 of the Constitution. (Para 17) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227 : (2023) 2 SCR 746 : 2023 INSC 241

Constitution of India, 1950; Article 136 - Power of the Supreme Court - In the absence of very special circumstances or in the presence of gross errors of law committed by the High Court, the Supreme Court does not interfere with the concurrent findings of fact of the courts below. The limitations under Article 136 are self-imposed limitations where in the ordinary course appreciation of evidence is not to be done in the absence of manifest error or the judgment, subject matter of the special leave, being ex facie perverse. (Para 17.10) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225 : (2023) 5 SCC 391 : (2023) 2 SCR 965 : 2023 INSC 238

Constitution of India, 1950; Article 136 - Scope of interference in respect of cases where concurrent findings are recorded by the Lower Courts – If doubt lingers with respect to the probability or conclusiveness of any circumstance relied on by the prosecution, forming a link in the chain of circumstances pointing to the guilt of convict, despite the existence of concurrent findings, the evidence has to be scrutinized by the Supreme Court so as to ensure that the totality of the evidence and circumstances relied on, did constitute a complete chain and it points to the guilt of the convict and it did not brook any hypothesis other than the guilt of the convict. (Para 13) Shankar v. State of Maharashtra, 2023 LiveLaw (SC) 212 : (2023) 2 SCR 661 : 2023 INSC 234

Constitution of India, 1950; Article 136 - Though the Scope of Article 136 of Constitution of India is very wide, the power conferred thereunder being a very special and extraordinary power, it has to be exercised in rare and exceptional cases. (Para 15) Imtiyaz Ahmad Malla v. State of Jammu & Kashmir, 2023 LiveLaw (SC) 150 : AIR 2023 SC 1308 : 2023 INSC 179

Article 142 - Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.

Constitution of India, 1950; Article 142 - Code of Criminal Procedure, 1973; Section 482 - In cases of offences relating to matrimonial disputes, if the Court is satisfied that the parties have genuinely settled the disputes amicably, then for the purpose of securing ends of justice, criminal proceedings inter-se parties can be quashed. Rangappa Javoor v. State of Karnataka, 2023 LiveLaw (SC) 74

Constitution of India, 1950; Article 142 - Insolvency of Reliance Home Finance Ltd (RHFL) - the Supreme Court allowed the Resolution Plan (RP) proposed by Authum Investments and Infrastructure Ltd. (AIIL) to cover the debenture holders of RHFL - the plan will not cover dissenting debenture holders - the dissenting debenture holders should be provided an option to accept the terms of the resolution plan who proposed such acquisition or they can pursue other legal remedies to recover their dues. Authum Investment and Infrastructure Ltd. v. R.K. Mohatta Family Trust, 2023 LiveLaw (SC) 173 : AIR 2023 SC 1459 : 2023 INSC 205

Constitution of India, 1950; Article 142 - Under Article 142 of the Constitution of India, this Court cannot issue directions in violation of the statutory provisions; and sympathy or sentiment, by itself, cannot be a ground for passing an order beyond and contrary to the legal rights. (Para 23) State of Orissa v. Orissa Khadi and Village Industries Board Karmachari Sangh, 2023 LiveLaw (SC) 214 : (2023) 2 SCR 1049 : 2023 INSC 247

Article 162 - Extent of executive power of State

Constitution of India, 1950; Article 162, 44 and Entry 5 of the Concurrent List of the Seventh Schedule - Writ Petition Challenging constitution of the Committee on the Uniform Civil Code set up by the State of Uttarakhand - Dismissed - Article 162 of the Constitution indicates that the executive power of a State extends to matters with respect to which the Legislature of the State has power to make laws -In view of the provisions of Entry 5 of the Concurrent List of the Seventh Schedule, the constitution of a Committee per se cannot be challenged as ultra vires. Anoop Baranwal v. Union of India, 2023 LiveLaw (SC) 22 : (2023) 6 SCC 161 : (2023) 9 SCR 1 : 2023 INSC 190

Article 167 - Duties of Chief Minister as respects the furnishing of information to Governor, etc.

Constitution of India, 1950; Article 167 - The Governor has a right to seek information from the Chief Minister in terms of Article 167(b) on matters relating to the administration of the affairs of the State and proposals for legislation. Once such information is sought, the Chief Minister is duty bound to furnish it - Not furnishing the information which was sought by the Governor would be plainly in dereliction of the constitutional duty which is imposed on the Chief Minister in terms of Article 167(b). (Para 24) State of Punjab v. Principal Secretary to the Governor of Punjab, 2023 LiveLaw (SC) 188 : 2023 INSC 181

Article 170 - Composition of the Legislative Assemblies.

Constitution of India, 1950; Article 170 - Article 170 deals with only the State Legislature. It has no application to the Legislatures of Union Territories. The reason is that the Legislative Assemblies of the concerned Union Territories will be governed by the law made by the Parliament in accordance with Article 239A and not by the provisions of Chapter III of Part VI. (Para 23) Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951 : 2023 INSC 124

Article 174 - Sessions of the State Legislature, prorogation and dissolution

Constitution of India, 1950; Article 174 - There can be no manner of doubt that the authority which is entrusted to the Governor to summon the House or each House of the Legislature of the State is to be exercised on the aid and advice of the Council of Ministers. This is not a constitutional arena in which the Governor is entitled to exercise his own discretion. (Para 22) State of Punjab v. Principal Secretary to the Governor of Punjab, 2023 LiveLaw (SC) 188 : 2023 INSC 181

Article 200 - Examination of complainant

Constitution of India; 1950; Article 200 - Governors must return bills as soon as possible - The first proviso to Article 200 states that the Governor may “as soon as possible after the presentation” of the Bill for assent, return the Bill if it is not a Money Bill together with a message for reconsideration to the House or Houses of the State Legislature. The expression “as soon as possible” has significant constitutional content and must be borne in mind by constitutional authorities. State of Telangana v. Governor, 2023 LiveLaw (SC) 356

Article 217 - Appointment and conditions of the office of a Judge of a High Court

Constitution of India, 1950; Article 217 - Appointment and conditions of the office of a Judge of a High Court - Method of recommendation envisages that Collegium of the High Court consisting Chief Justice and two senior most judges recommends names; Government provides inputs; IB report is obtained; Supreme Court Collegium of three senior most judges takes a call. Ashok Pandey v. Union of India, 2023 LiveLaw (SC) 5

Constitution of India, 1950; Article 217(2) - observing that the consultative process is to limit the judicial review, restricting it to the specified area, that is, eligibility, and not suitability - judicial review lies when there is lack of eligibility or 'lack of effective consultation'. Judicial review does not lie on 'content' of consultation. [Para 4] Anna Mathews v. Supreme Court of India, 2023 LiveLaw (SC) 93 : AIR 2023 SC 886 : (2023) 5 SCC 661 : (2023) 1 SCR 463 : 2023 INSC 122

Constitution of India, 1950; Article 217(2) - prescribes the constitutional requirement of consultation - prescribes the procedure to be followed, which procedure is designed to test the fitness of a person so to be appointed; her character, her integrity, her competence, her knowledge and the like. [Para 3] Anna Mathews v. Supreme Court of India, 2023 LiveLaw (SC) 93 : AIR 2023 SC 886 : (2023) 5 SCC 661 : (2023) 1 SCR 463 : 2023 INSC 122

Constitution of India, 1950; Article 217(2) - the Supreme Court refused to accept the interpretation that a person who may have been enrolled with a State Bar Council and subsequently shifted practice in the Supreme Court is ineligible to be appointed as High Court judges - because at the end of the day every lawyer is enrolled with the Bar Council of a particular State. Ashok Pandey v. Union of India, 2023 LiveLaw (SC) 5

Constitution of India, 1950; Article 217(2)(a) - Supreme Court rejects the petition filed by nine judicial officers from Andhra Pradesh for consideration for elevation as HC judges- Court holds that their service as ad-hoc judges cannot be reckoned for the purposes of Article 217(2)(a). (Para 8) C. Yamini v. High Court of Andhra Pradesh, 2023 LiveLaw (SC) 130 : AIR 2023 SC 1214 : 2023 INSC 155

Article 222 - Transfer of a Judge from one High Court to another

Constitution of India, 1950; Article 222 - Supreme Court critices the Centre for delay in notifying transfer of High Court judges as per collegium recommendations- Delay in the same not only affects the administration of justice but creates an impression as if there are third party sources interfering on behalf of these Judges with the Government. Advocates Association Bengaluru v. Barun Mitra, 2023 LiveLaw (SC) 21

Constitution of India, 1950; Article 222 - Transferred judges do not carry label of 'bar judge' or 'service judge' - If a Judge is transferred from a Court, it is not as if a replacement can be provided from the Bar or the Service Judges of that Court as the total strength of the Court is specified. When the Judge is transferred to another Court, he is a transferred Judge neither categorized from the Bar nor from the Service. In the Court where he is transferred, he occupies a physical position in the strength of that Court and unless correspondingly Judges are transferred from that Court, there will be lesser person appointed in that Court from the Bar/Services as the total strength of the Court to which transfer is made cannot be exceeded. The transferred Judge does not carry the label of a Bar or a Service Judge and it is up to the Chief Justice where to he is transferred to reduce the inflow in the Court of transfer, i.e., from the Bar or Service. Similarly, if from the Court where to Judges are transferred, in turn Judges from either category are transferred to other Courts they in turn will carry the label of a transferred Judge and not from the Bar or the Service. This aspect has been clarified as there 5 appears to be some doubts expressed about how the system of transfer will operate. Advocates Association Bengaluru v. Barun Mitra, 2023 LiveLaw (SC) 21

Article 226 - Power of High Courts to issue certain writs

Constitution of India, 1950; Article 226 - the High Court, even while deciding a bail application, has the power to issue other directions in the interest of justice. Sanjay Dubey v. State of Madhya Pradesh, 2023 LiveLaw (SC) 435 : 2023 INSC 519

Constitution of India, 1950; Article 226 - The observations are not to be construed to imply that the High Courts should delve into the efficacy of investigation at the stage of bail, and the present judgment is not to be misread to haul up the investigative agencies/officers in all cases. (Para 15) Sanjay Dubey v. State of Madhya Pradesh, 2023 LiveLaw (SC) 435 : 2023 INSC 519

Constitution of India, 1950; Article 226 and 227 - The High Court is a Constitutional Court, possessing a wide repertoire of powers. The High Court has original, appellate and suo motu powers. The powers are meant for taking care of situations where the High Court feels that some direction(s)/order(s) are required in the interest of justice. (Para 12) Sanjay Dubey v. State of Madhya Pradesh, 2023 LiveLaw (SC) 435 : 2023 INSC 519

Constitution of India, 1950; Article 226 - Supreme Court deprecates High Court entertaining writ petitions in SARFAESI matters, especially against private banks - When a statute prescribes a particular mode, an attempt to circumvent shall not be encouraged by a writ court. A litigant cannot avoid the noncompliance of approaching the Tribunal which requires the prescription of fees and use the constitutional remedy as an alternative. South Indian Bank Ltd. v. Naveen Mathew Philip, 2023 LiveLaw (SC) 320 : 2023 INSC 379

Constitution of India, 1950; Article 226 - Dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper - Mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the high court under Article 226 has not pursued, would not oust the jurisdiction of the high court and render a writ petition “not maintainable" - Where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an alternative remedy being available. (Para 4-8) Godrej Sara Lee Ltd. v. Excise and Taxation Officer Cum Assessing Authority, 2023 LiveLaw (SC) 70 : AIR 2023 SC 781 : 2023 INSC 92

Constitution of India, 1950; Article 226 - It was premature for the High Court to opine anything on whether there was any evasion of the tax or not. The same was to be considered in an appropriate proceeding for which the notice under section 130 of the CGST Act was issued. Therefore, High Court has materially erred in entertaining the writ petition against the show cause notice and quashing and setting aside the same. State of Punjab v. Shiv Enterprises, 2023 LiveLaw (SC) 56

Constitution of India, 1950; Article 226 - Writ jurisdiction can be exercised when the State, even in its contractual dealings, fails to exercise a degree of fairness or practices any discrimination. (Para 19) Gas Authority of India Ltd. v. Indian Petrochemicals Corporation Ltd., 2023 LiveLaw (SC) 88 : AIR 2023 SC 833 : (2023) 3 SCC 629 : (2023) 2 SCR 326 : 2023 INSC 103

Constitution of India, 1950; Article 226 - Writ petition under Article 226 of the Constitution of India for recovery of money under the bills/invoices should not have been entertained by the High Court, more particularly, when in fact the original writ petitioner(s) availed the remedy before Civil Court and filed Civil Suit, which came to be dismissed in default. Director of Agriculture v. M.V. Ramachandran, 2023 LiveLaw (SC) 220

Constitution of India, 1950; Article 226 - Writ petitions challenging orders of Armed Forces Tribunal are maintainable - To deny the High Court to correct any error which the Armed Forces Tribunal may fall into, even in exercising jurisdiction under Article 226, would be against the constitutional scheme. Union of India v. Parashotam Dass, 2023 LiveLaw (SC) 224 : 2023 INSC 265

Constitution of India, 1950; Article 226(2) - Concept of forum conveniens - Even if a small part of the cause of action arises within the territorial jurisdiction of a high court, the same by itself could not have been a determinative factor compelling the High Court to keep the writ petitions alive against the appellant to decide the matter qua the impugned notification, on merit. (Para 18) State of Goa v. Summit Online Trade Solutions (P) Ltd, 2023 LiveLaw (SC) 184 : AIR 2023 SC 1536 : (2023) 2 SCR 247 : 2023 INSC 229

Constitution of India, 1950; Article 226(2) - Guiding tests to determine whether part of cause of action has arisen within the territorial jurisdiction of a High Court- In the context of a writ petition, what would constitute such 'cause of action' is the material facts which are imperative for the writ petitioner to plead and prove to obtain relief as claimed- Determination of the question as to whether the facts pleaded constitute a part of the cause of action, sufficient to attract clause (2) of Article 226 of the Constitution, would necessarily involve an exercise by the high court to ascertain that the facts, as pleaded, constitute a material, essential or integral part of the cause of action - In so determining, it is the substance of the matter that is relevant- It, therefore, follows that the party invoking the writ jurisdiction has to disclose that the integral facts pleaded in support of the cause of action do constitute a cause empowering the high court to decide the dispute and that, at least, a part of the cause of action to move the high court arose within its jurisdiction- Such pleaded facts must have a nexus with the subject matter of challenge based on which the prayer can be granted- Those facts which are not relevant or germane for grant of the prayer would not give rise to a cause of action conferring jurisdiction on the court. (Para 15) State of Goa v. Summit Online Trade Solutions (P) Ltd, 2023 LiveLaw (SC) 184 : AIR 2023 SC 1536 : (2023) 2 SCR 247 : 2023 INSC 229

Constitution of India, 1950; Article 226(2) - Jurisdiction of a High Court to entertain a challenge to an order passed by a Tribunal situated outside its jurisdiction - Supreme Court refers to larger bench. Union of India v. Sanjiv Chaturvedi, 2023 LiveLaw (SC) 162 : (2023) 5 SCC 706 : (2023) 2 SCR 59 : 2023 INSC 210

Constitution of India, 1950; Article 226(2) - Tax has been levied by the Government of Goa in respect of a business that the petitioning company is carrying on within the territory of Goa - Such tax is payable by the petitioning company not in respect of carrying on of any business in the territory of Sikkim- Merely because the petitioning company has its office in Gangtok, Sikkim, the same by itself does not form an integral part of the cause of action authorizing the petitioning company to move the High Court. (Para 16) State of Goa v. Summit Online Trade Solutions (P) Ltd, 2023 LiveLaw (SC) 184 : AIR 2023 SC 1536 : (2023) 2 SCR 247 : 2023 INSC 229

Article 227 - Power of superintendence over all courts by the High Court

Constitution of India, 1950; Article 226, 227 - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - In view of alternative statutory remedy available by way of appeal before the DRAT, the High Court ought not to have entertained the writ petition under Article 226/227 allowing the borrower to circumvent the provision of appeal before the DRAT under the provisions of the SARFAESI Act. (Para 6) K. Sreedhar v. Raus Constructions Pvt. Ltd., 2022 LiveLaw (SC) 13 : AIR 2023 SC 306 : (2023) 1 SCR 579 : 2023 INSC 17

Article 239A - Creation of local Legislatures or Council of Ministers or both for certain Union territories

Constitution of India, 1950; Article 3, 4, 239A - Parliament by making a law can convert an existing State into one or more Union territories. Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951 : 2023 INSC 124

Constitution of India, 1950; Article 3, 4, 239A - Parliament is empowered by law to create a body of legislature for the Union territories of Puducherry and J&K.- Even if the law made by Parliament creating a body of legislature for Union territories of Puducherry and J&K has the effect of amending certain parts of the Constitution, it shall not be deemed to be an amendment of the Constitution for the purposes of Article 368. Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951 : 2023 INSC 124

Article 239AA - Special provisions with respect to Delhi

Constitution of India, 1905; Article 239AA - If a democratically elected government is not given the power to control the officers, the principle of triple chain of accountability will be redundant. If the officers stop reporting to the Ministers or do not abide by their directions, the principle of collective responsibility is affected. If "services" are excluded from legislative and executive domain, the Ministers would be excluded from controlling the civil servants who are to implement the executive decisions. if the officers feel they are insulated from the control of the government, it will dilute accountability and affect governance. Thus, in a democratic form of govt, real power of administration must rest on the elected arm of the government. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423 : AIR 2023 SC 2881 : 2023 INSC 517

Constitution of India, 1905; Article 239AA - Legislative structure of Article 239AA excludes Entries 1, 2 and 18 of List II to Schedule VII (public order, police and land) from the power of the Delhi legislative assembly. The Union of India has executive power only over these three entries.Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423 : AIR 2023 SC 2881 : 2023 INSC 517

Constitution of India, 1905; Article 239AA - the legislative assembly of Delhi embodies the principle of representative democracy, the Delhi assembly is given powers to legislate to represent the will of the people. Thus, Article 239AA of the Constitution must be interpreted in a manner to further the interest of representative democracy. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423 : AIR 2023 SC 2881 : 2023 INSC 517

Constitution of India, 1905; Article 239AA - the National Capital Territory of Delhi has legislative and executive power over administrative services in the National Capital, excluding matters relating to public order, police and land. The Lieutenant Governor shall be bound by the decision of Delhi government over services, apart from public order, police and land. If services are excluded from its legislative and executive domain, the Ministers and the Executive who are charged with formulating policies in the territory of NCTD would be excluded from controlling the civil service officers who implement such executive decisions. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423 : AIR 2023 SC 2881 : 2023 INSC 517

Article 243R - Composition of Municipalities

Constitution of India, 1950; Article 243R - The Constitution has imposed a restriction in terms of which nominated members who are brought in on account of their special knowledge or experience in Municipal administration do not have the right to vote- The same restriction finds statutory recognition in Section 3(3)(b)(i) of the Delhi Municipal Corporation Act. The above provisions indicate that persons who are nominated under the sub-clause shall not have the right to vote in the meetings of the Corporation. The Constitution and the Act place value on their experience but the right to vote is not granted to them at meetings of the Corporation. (Para 11) Shelly Oberoi v. Office of Lieutenant Governor of Delhi, 2023 LiveLaw (SC) 119 : (2023) 5 SCC 414 : 2023 INSC 132

Article 254 - Inconsistency between laws made by Parliament and laws made by the Legislatures of States

Constitution of India, 1950; Article 254 - The Tamil Nadu Highways Act 2001 cannot be invalidated on the ground that is provisions are at variance from the Right to Fair Compensation and Transparency in Land Acquisition; Rehabilitation and Resettlement Act, 2013. Since the Tamil Nadu Act has received the assent of the President under Article 254(2) of the Constitution of India, there is no basis in challenging the Act on the ground that is repugnant to the RFCTLARR Act. Though the State Act did not provide fixed timelines for acquiring land as compared to the new Land Acquisition Act (a central Legislature), the same would not vitiate the State Act. The Tamil Nadu Highways Act, 2001, is not liable to be invalidated on the ground that its provisions manifest discrimination or arbitrariness when compared with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition; Rehabilitation and Resettlement Act, 2013. The State Act stood protected after receiving the Presidential assent under Article 254(2) of the Constitution. The whole purpose of Article 254(2) was to protect a State enactment when it ran contrary to central legislation. Individual cases involving delay in the acquisition of land under the Highways Act would have to be dealt on merits and that itself would not invalidate the Act. C.S. Gopalakrishnan v. State of Tamil Nadu, 2023 LiveLaw (SC) 413 : 2023 INSC 510

Constitution of India, 1950; Article 254 - Inconsistency between laws made by Parliament and laws made by the Legislatures of States - the doctrine of repugnancy as such would not apply within the meaning of Article 254 of the Constitution. Although Entry 25 of List III gives powers to both the central and state legislatures to pass laws on the subject of education, it is significant to note that any such law made by the state legislature is subject to, inter alia, Entry 66 of List I. Hence, where there is a direct conflict between a state law and a union law over a matter of the coordination and determination of standards in institutions for higher education, such as in medical education concerning modern medicine, the state law cannot have any validity as the state legislature does not possess legislative competence. Baharul Islam v. Indian Medical Association, 2023 LiveLaw (SC) 57 : AIR 2023 SC 721 : 2023 INSC 81

Article 299 - Contracts

Constitution of India, 1950; Article 299 - Arbitration and Conciliation Act, 1996; Sections 11(6) and 12(5) r/w Schedule VII - Application for appointment of arbitrator - A contract entered into in the name of the President of India, does not create an immunity against the application of any statutory prescription imposing conditions on parties to an agreement, when the Government chooses to enter into a contract. Glock Asia-Pacific Ltd. v. Union of India, 2023 LiveLaw (SC) 459 : AIR 2023 SC 2777 : 2023 INSC 568

Article 300A - Suits and proceedings

Constitution of India, 1950; Article 300A - Assuming holding notes is a right under the Constitution, the rights vested in the notes was not taken away - only restrictions were with respect to exchange of old notes with the new notes. [Para 277 - 278] Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Constitution of India, 1950; Article 300A - To continue with the temporary acquisition for number of years would be arbitrary and can be said to be 9 infringing the right to use the property guaranteed under Article 300A of the Constitution of India. Even to continue with the temporary acquisition for a longer period can be said to be unreasonable, infringing the rights of the landowners to deal with and/or use the land. (Para 7) Manubhai Sendhabhai Bharwad v. Oil and Natural Gas Corporation Ltd; 2023 LiveLaw (SC) 55 : AIR 2023 SC 992 : (2023) 1 SCR 1021 : 2023 INSC 61

Constitution of India, 1950; Article 300A - Sick Industrial Companies Act, 1985 - Rehabilitation scheme under Section 18 of the SICA, 1985 shall bind all the creditors including the unsecured creditors - Dues cannot be recovered post revival of sick company - Compelling unsecured creditors to accept the scaled down value of their dues would not be violative of Article 300A of the Constitution of India. It was observed that the rehabilitation scheme is prepared under Section 18 of SICA, which has a binding effect on all the creditors. Modi Rubber Ltd. v. Continental Carbon India Ltd; 2023 LiveLaw (SC) 208 : 2023 INSC 246

Article 309 - Power to postpone or adjourn proceedings

Constitution of India, 1950; Article 309 - Appointment either to a civil post or in the civil services of the Union or the State, is one of a status. It is not an employment governed strictly by a contract of service or solely by labour welfare legislations, but by statute or statutory rules issued under Article 309 or its proviso. (Para 21) Security Printing & Minting Corporation of India Ltd. v. Vijay D. Kasbe, 2023 LiveLaw (SC) 321 : AIR 2023 SC 2042 : 2023 INSC 388

Article 311 - Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State

Constitution of India, 1905; Article 311 (2) (c) Second Proviso - Inquiry proceedings of persons employed in civil capacities under the Union Government or the State Government can be done away with if the President or the Governor is satisfied that in the interest of security of the State it is not expedient to hold such an inquiry. Once it is obvious that circumstances based on materials capable of arriving at a satisfaction that it is not expedient to hold an inquiry “in the interest of the security of the State” are available, the decision in holding that it is inexpedient “in the interest of the security of the State” to hold an inquiry warrants no further scrutiny. The Court cannot, in such circumstances, judge on the expedience or inexpediency to dispense with the inquiry as it was arrived at based on the subjective satisfaction of the President based on materials. (Para 24) Dr. V.R. Sanal Kumar v. Union of India, 2023 LiveLaw (SC) 432 : AIR 2023 SC 2391 : 2023 INSC 526

Constitution of India, 1950 - Article 311 - Departmental enquiry not necessary to terminate the services of a judicial officer on the ground of suppression of criminal case at the time of making application- It is not a case of termination of services for misconduct- t was the case of cancellation of the appointment on not disclosing the true and correct facts in the application form. Therefore, as rightly observed by the High Court, there was no question of holding any departmental enquiry under Article 311 of the Constitution of India. (Para 7) Yogeeta Chandra v. State of Uttar Pradesh, 2023 LiveLaw (SC) 142

Article 323A – Administrative tribunals

Constitution of India, 1950 - Article 323A does not preclude the Union Government from abolishing SATs. (Para 32) Orissa Administrative Tribunal Bar Association v. Union of India, 2023 LiveLaw (SC) 216 : 2023 INSC 271

Article 324 - Superintendence, direction and control of elections to be vested in an Election Commission

Constitution of India, 1950; Article 324 (2) - Appointment to the posts of Chief Election Commissioner and the Election Commissioners shall be done by the President of India on the basis of the advice tendered by a Committee consisting of the Prime Minister of India, the Leader of the Opposition in the Lok Sabha and, in case, there is no such Leader, the Leader of the largest Party in the Opposition in the Lok Sabha having the largest numerical strength, and the Chief Justice of India. This norm will continue to hold good till a law is made by the Parliament - As regards the relief relating to putting in place a permanent Secretariat for the Election Commission of India and charging its expenditure to the Consolidated Fund of India is concerned, the Court makes a fervent appeal that the Union of India/Parliament may consider bringing in the necessary changes so that the Election Commission of India becomes truly independent. Anoop Baranwal v. Union of India, 2023 LiveLaw (SC) 155 : (2023) 6 SCC 161 : (2023) 9 SCR 1 : 2023 INSC 190

Articles 330 - Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People

Constitution of India, 1950; Articles 330 and 332 - Delimitation Act, 2002 - As regards providing reservation for all the Lok Sabha and the State Legislative constituencies in a Scheduled Area, the appellant cannot contend that all the constituencies in a Scheduled area should be reserved for the Scheduled Tribes. Reservation is required to be made in terms of Articles 330 and 332 of the Constitution of India. These provisions do not provide that all the constituencies in the Scheduled Areas shall be reserved for Scheduled Tribes. Moreover, the 2002 Act is applicable to the Scheduled Area. Therefore, even the said prayer to issue a writ of mandamus, as regards the reservation for the Scheduled Tribes, deserves to be rejected. (Para 17) Adivasis for Social and Human Rights Action v. Union of India, 2023 LiveLaw (SC) 431 : AIR 2023 SC 2658 : 2023 INSC 512

Clause 5 of the Fifth Schedule

Constitution of India, 1950; Clause 5 of the Fifth Schedule - Law applicable to Scheduled Areas - All the Central and the State laws which are applicable to the entire State will continue to apply to the Scheduled Area unless, in exercise of powers under sub-clause (1) of Clause 5 of the Fifth Schedule, there is a specific notification issued by the Hon'ble Governor making a particular enactment inapplicable, either fully or partially. (Para 13 (i)) Adivasis for Social and Human Rights Action v. Union of India, 2023 LiveLaw (SC) 431 : AIR 2023 SC 2658 : 2023 INSC 512

Constitution of India, 1950; Clause 5 of the Fifth Schedule - Law applicable to Scheduled Areas - The power of the Hon'ble Governor under Clause 5 of the Fifth Schedule is restricted to directing that a particular law will not apply to the Scheduled Area or it will apply with such modifications as may be specified in the notification issued under subclause (1) of Clause 5 of the Fifth Schedule or while making Regulations in terms of sub-clause (2) of Clause 5 of the Fifth Schedule. (Para 13 (ii)) Adivasis for Social and Human Rights Action v. Union of India, 2023 LiveLaw (SC) 431 : AIR 2023 SC 2658 : 2023 INSC 512

Constitution of India, 1950; Clause 5 of the Fifth Schedule - Law applicable to Scheduled Areas - The power of the Hon'ble Governor under Clause 5 of the Fifth Schedule does not supersede the Fundamental Rights under Part III of the Constitution of India. Therefore, the Fundamental Rights conferred by sub-clause (e) of Article 19(1) of the Constitution of India on the citizens can also be exercised in relation to the Scheduled Area. (Para 13 (ii) & (iii)) Adivasis for Social and Human Rights Action v. Union of India, 2023 LiveLaw (SC) 431 : AIR 2023 SC 2658 : 2023 INSC 512

Entry 35 of List III of Seventh Schedule

Constitution of India, 1950; Entry 35 of List III of Seventh Schedule - The power on the Parliament as also the State Legislatures to make laws relating to mechanically propelled vehicles of all kinds and also to lay down the principles on which taxes on such vehicles are to be levied -The central enactment i.e. the law made by the Parliament has not laid down any principles for levy of taxes. The State Legislatures has the power to levy taxes not only under Entries 56 and 57 of List II but also to lay down the principles under Entry 35 of List III. (Para 46) State of Himachal Pradesh v. Goel Bus Service Kullu, 2023 LiveLaw (SC) 27 : AIR 2023 SC 390 : 2023 INSC 27

Entry 36 of List I of the Seventh Schedule

Constitution of India, 1950; Entry 36 of List I of the Seventh Schedule - deals with currency, coinage and legal tender; foreign exchange which is a field of legislation - Central Government has the power to initiate the process of demonetisation on the strength of Entry 36 - apart from financial health of the country Central Government is also concerned about the sovereignty, integrity and security of the country - if it thinks fit to initiate a proposal for demonetisation to eradicate black money, fake currency, terror funding etc, it should be able to do so. [Para 15.7, 15.8 and 15.9] [Dissenting Opinion] Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Constitution of India, 1950; Entry 36 of List I of the Seventh Schedule - power of Central Government to demonetise banknotes - Central Government has the power to demonetise 'all' series of bank notes of 'all' denominations, even without the recommendation of Central Board; but not in exercise of Section 26(2) - such an extensive power is to be exercised only through a legislative process [legislation/Ordinance (if urgent)] and not by way of an executive act - the Parliament should be involved in the process of implementation of such a scheme of demonetisation. [Para 15.13, 15.4 and 15.22] [Dissenting Opinion] Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Entry 66 of List I of the Seventh Schedule

Constitution of India, 1950; Entry 66 of List I - It is essential that uniform standards are laid down by the Parliament which are adhered to by institutions and medical colleges across the country. To this end, Entry 66 has been formulated with the objective of maintaining uniform standards in research, higher education, and technical education. Hence, state legislatures lack legislative competence in the areas of prescription of minimum standards for medical education, authority to recognise or derecognise an institution, etc. The particular qualifications for medical practitioners practising in disparate areas and in disparate fields, providing different levels of primary, secondary, or tertiary medical services, are within the mandate of expert and statutory authorities entrusted with the said mandate by the Parliament. Baharul Islam v. Indian Medical Association, 2023 LiveLaw (SC) 57 : AIR 2023 SC 721 : 2023 INSC 81

Constitutional Court

Constitutional Court - A High Court ~ howsoever big or small, old or new ~ is as much a Constitutional Court as this Court is and enjoys wide ranging powers vested in it by law. (Para 42) Shah Newaz Khan v. State of Nagaland, 2023 LiveLaw (SC) 146 : AIR 2023 SC 1338 : 2023 INSC 176

Consumer Law

Railways not liable for theft of passenger's belongings - the theft of personal belongings of a Passenger is not “deficiency of service” by Railways. If the passenger is not able to protect his own belongings, the Railways cannot be held responsible. The Supreme court set aside orders passed by Consumer forum whereby Railways was directed to reimburse the stolen amount of cash to the Passenger. Station Superintendent v. Surender Bhola, 2023 LiveLaw (SC) 487

Consumer Law - A pedantic and hyper-technical approach would cause damage to the very concept of consumerism. (Para 23) Alpha G184 Owners Association v. Magnum International Trading Company Pvt. Ltd., 2023 LiveLaw (SC) 442 : AIR 2023 SC 2527 : 2023 INSC 536

Definition of 'Consumer' includes 'Consumers'; Joint complaint by multiple consumers need not be filed in representative capacity. Alpha G184 Owners Association v. Magnum International Trading Company Pvt. Ltd., 2023 LiveLaw (SC) 442 : AIR 2023 SC 2527 : 2023 INSC 536

Consumer Protection Act, 1986 - Commercial enterprises can raise consumer disputes in relation to goods or services unconnected to profit generation. National Insurance Co. Ltd. v. Harsolia Motors, 2023 LiveLaw (SC) 313 : 2023 INSC 367

Consumer Commissions can't decide complaints involving highly disputed facts, criminal or tortious acts. Chairman & Managing Director, City Union Bank Ltd. v. R. Chandramohan, 2023 LiveLaw (SC) 251 : AIR 2023 SC 1762 : 2023 INSC 300

Amend Consumer Protection Rules on appointment process of commission members within 3 months : Supreme Court to Centre, States. In Re: Inaction of the Governments in appointing President and Members/Staff of Districts and State Consumer Disputes Redressal Commission and inadequate infrastructure across India v. Union of India, 2023 LiveLaw (SC) 201

Supreme Court Paves way for lawyers with 10 yrs experience to be considered for consumer commission appointments; upholds striking down of centre's rules. Ministry of Consumer Affairs v. Dr. Mahindra Bhaskar Limaye, 2023 LiveLaw (SC) 161 : AIR 2023 SC 1371 : 2023 INSC 209

Supreme Court upholds the Bombay High Court judgment which struck down provisions of the Consumer Protection Rules which excluded persons with 10 years professional experience from appointment to State Consumer Commissions and District Consumer Forums - for appointment of President and Members of the State Commission and District Commission, the appointment shall be made on the basis of performance in written test consisting of two papers. Ministry of Consumer Affairs v. Dr. Mahindra Bhaskar Limaye, 2023 LiveLaw (SC) 161 : AIR 2023 SC 1371 : 2023 INSC 209

Flat owners don't forfeit the right to claim amenities promised by builder by taking possession of apartments. Debashis Sinha v. RNR Enterprise, 2023 LiveLaw (SC) 92 : AIR 2023 SC 840 : (2023) 3 SCC 195 : 2023 INSC 114

Flat owners do not forfeit the right to claim amenities promised by the developer by taking possession of the apartments- Supreme Court disapproves of NCDRC order dismissing homebuyers' claim on the ground that knowingly purchased the apartments. Debashis Sinha v. RNR Enterprise, 2023 LiveLaw (SC) 92 : AIR 2023 SC 840 : (2023) 3 SCC 195 : 2023 INSC 114

Supreme Court's comments on flat-owners' plight - Now-a-days, flat owners seldom purchase flats with liquid cash. Flats are purchased on the basis of finances being advanced by banks and other financial institutions. Once a flat is booked and the prospective flat owner enters into an agreement for loan, instalments fall due to be paid to clear the debt irrespective of whether the flat is ready for being delivered possession. The usual delays that are associated with construction activities result in undue anxiety, stress, and harassment for which many a prospective flat owner, it is common knowledge, even without the project/flat being wholly complete is left with no other option but to take possession. Debashis Sinha v. RNR Enterprise, 2023 LiveLaw (SC) 92 : AIR 2023 SC 840 : (2023) 3 SCC 195 : 2023 INSC 114

Rs. 2 Crore compensation for bad haircut excessive: Supreme Court asks NCDRC to decide model's claim afresh. ITC Ltd. v. Aashna Roy, 2023 LiveLaw (SC) 87 : AIR 2023 SC 827 : (2023) 5 SCC 655 : 2023 INSC 100

Consumer Protection Act, 1986

Consumer Protection Act, 1986; Section 12(1)(c) – Code of Civil Procedure, 1908; Order 1 Rule 8 - The need for the application of Order I Rule 8 CPC, which speaks of a plaintiff representing the other public as a whole would be required only in a case involving a complaint under Section 12(1)(c) of the 1986 Act. In other words, it does not have any application when similarly placed complainants jointly make a complaint seeking the very same relief. In such a case, there is no question of Order I Rule 8 CPC being complied with as they do not represent the others, particularly when there is no larger public interest involved. Such complainants seek reliefs for themselves and nothing beyond. (Para 17) Alpha G184 Owners Association v. Magnum International Trading Company Pvt. Ltd., 2023 LiveLaw (SC) 442 : AIR 2023 SC 2527 : 2023 INSC 536

Consumer Protection Act, 1986; Section 2(1)(b)(i) – Definition of 'consumer' includes 'consumers' - Joint complaint by multiple consumers need not be filed in representative capacity. Consumer Protection Act, 1986; Section 13(6) – Code of Civil Procedure, 1908; Order 1 Rule 8 - When a few consumers who have the same interest seeking the same relief file a joint complaint without any larger public interest involved, it need not be filed in a representative capacity. Alpha G184 Owners Association v. Magnum International Trading Company Pvt. Ltd., 2023 LiveLaw (SC) 442 : AIR 2023 SC 2527 : 2023 INSC 536

Consumer Protection Act, 2019 - The 2019 Act facilitates the consumers to approach the forums by providing a very flexible procedure. It is meant to encourage consumerism in the country. Any technical approach in construing the provisions against the consumer would go against the very objective behind the enactment. (Para 15) Alpha G184 Owners Association v. Magnum International Trading Company Pvt. Ltd., 2023 LiveLaw (SC) 442 : AIR 2023 SC 2527 : 2023 INSC 536

Consumer Protection Act, 1986 - Tests to determine if goods or services were purchased or availed for commercial purposes - Two fold tests- (i) whether the goods are purchased for resale or for commercial purpose; or (ii) whether the services are availed for any commercial purpose - If the goods are purchased for resale or for commercial purpose, then such consumer would be excluded from the coverage of the Act, 1986. For example, if a manufacturer who is producing product A, for such production he may be required to purchase articles which may be raw material, then purchase of such articles would be for commercial purpose. As against this, if the same manufacturer purchases a refrigerator, television or air-conditioner for his use at his residence or even for his office has no direct or indirect nexus to generate profits, cannot be held to be for commercial purpose and for afore-stated reason he is qualified to approach the Consumer Forum under the Act, 1986 - Similarly, a hospital which hires services of a medical practitioner, it would be a commercial purpose, but if a person avails such services for his ailment, it would be held to be a noncommercial purpose. (Para 39) National Insurance Co. Ltd. v. Harsolia Motors, 2023 LiveLaw (SC) 313 : 2023 INSC 367

Consumer Protection Act, 1986 - The Act, 1986 is a social benefit-oriented legislation and, therefore, the Court has to adopt a constructive liberal approach while construing the provisions of the Act - The provisions of the Act, 1986 thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit-oriented legislation. (Para 21, 24) National Insurance Co. Ltd. v. Harsolia Motors, 2023 LiveLaw (SC) 313 : 2023 INSC 367

Consumer Protection Act, 1986 - there is no such exclusion from the definition of the term “consumer” either to a commercial enterprise or to a person who is covered under the expression “person” defined in Section 2(1)(m) of the Act, 1986 merely because it is a commercial enterprise. (Para 36) National Insurance Co. Ltd. v. Harsolia Motors, 2023 LiveLaw (SC) 313 : 2023 INSC 367

Consumer Protection Act, 1986 - Whether a commercial enterprise can be held to be a "consumer" in relation to dispute relating to insurance policy availed by it - Held yes in the facts of the case - hiring of insurance policy is clearly an act for indemnifying a risk of loss/damages and there is no element of profit generation - clarifies that it is not a general rule and depends on the facts of the case. (Para 44 to 47) National Insurance Co. Ltd. v. Harsolia Motors, 2023 LiveLaw (SC) 313 : 2023 INSC 367

Consumer Protection Act, 1986; Section 2(1)(d) - Taking a wide meaning of the words “for any commercial purpose”, it would mean that the goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose, but in a case where goods purchased or services hired is an activity, which is not directly intended to generate profit, it would not be a commercial purpose. (Para 40) National Insurance Co. Ltd. v. Harsolia Motors, 2023 LiveLaw (SC) 313 : 2023 INSC 367

Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020 - Rule 3 prescribed a minimum professional experience of 20 years for consideration to appointment of members as State Consumer Commissions- Rule 4 prescribed a minimum professional experience of 20 years for consideration to appointment of members as District Consumer Commissions- Rules struck down as violative of the SC judgment in Madras Bar Association judgment which held that lawyers with 10 years of professional experience are eligible for appointment as Tribunal members -the High Court in the impugned judgment and order has rightly observed and held that Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Rules, 2020 which are contrary to the decisions of this Court in the cases of State of Uttar Pradesh and Others Vs. All Uttar Pradesh Consumer Protection Bar Association; (2017) 1 SCC 444 and the Madras Bar Association Vs. Union of India and Another; (2021) 7 SCC 369 are unconstitutional and arbitrary. (Para 6.4) Ministry of Consumer Affairs v. Dr. Mahindra Bhaskar Limaye, 2023 LiveLaw (SC) 161 : AIR 2023 SC 1371 : 2023 INSC 209

Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020 - Rule 6(9) lacks transparency and it confers uncontrolled discretion and excessive power to the Selection Committee. Under Rule 6(9), the Selection Committee is empowered with the uncontrolled discretionary power to determine its procedure to recommend candidates to be appointed as President and Members of the State and District Commission. (Para 6.5) Ministry of Consumer Affairs v. Dr. Mahindra Bhaskar Limaye, 2023 LiveLaw (SC) 161 : AIR 2023 SC 1371 : 2023 INSC 209

Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020 - Till the amendments are made in order to do complete justice under A. 142 we direct that in future a person having Bachelor's degree from a recognised university and who is a person of ability, integrity standing and having special knowledge and professional experience of not less than 10 years in consumer affairs, law, public affairs, administration etc. shall be treated as qualified for appointment as President and member of State and District Commission. We also direct that for appointment the appointment shall be based on the performance in 2 papers. Qualifying marks in the papers shall be 50% and there must be a viva for 50 marks each. (Para 8.2) Ministry of Consumer Affairs v. Dr. Mahindra Bhaskar Limaye, 2023 LiveLaw (SC) 161 : AIR 2023 SC 1371 : 2023 INSC 209

Consumer Protection Act 1986 - Flat-owners' rights - If complaints were to be spurned on the specious ground that the consumers knew what they were purchasing, the object and purpose of the enactment would be defeated-in most cases, the jurisdiction of NCDRC is invoked post-purchase-Any deficiency detected post-purchase opens up an avenue for the aggrieved consumer to seek relief before the consumer for a. (Para 11) Debashis Sinha v. RNR Enterprise, 2023 LiveLaw (SC) 92 : AIR 2023 SC 840 : (2023) 3 SCC 195 : 2023 INSC 114

Consumer Protection Act 1986 - Supreme Court terms Rs 2 crores compensation awarded by the NCDRC for a bad hair-cut suffered by a model at a 5-star hotel saloon as excessive and disproportionate-quantification of compensation has to be based upon material evidence and not on the mere asking. (Para 13, 15) ITC Ltd. v. Aashna Roy, 2023 LiveLaw (SC) 87 : AIR 2023 SC 827 : (2023) 5 SCC 655 : 2023 INSC 100

Consumer Protection Act, 1986 - Kolkata Municipal Corporation Act - Builder has obligation to seek completion certificate-It is no part of the flat owner's duty to apply for a completion certificate. (Para 18, 19) Debashis Sinha v. RNR Enterprise, 2023 LiveLaw (SC) 92 : AIR 2023 SC 840 : (2023) 3 SCC 195 : 2023 INSC 114

Consumer Protection Act, 1986 - The proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The “deficiency in service”, as well settled, has to be distinguished from the criminal acts or tortious acts. There could not be any presumption with regard to the wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1)(g) of the Act. The burden of proving the deficiency in service would always be upon the person alleging it. (Para 12) Chairman & Managing Director, City Union Bank Ltd. v. R. Chandramohan, 2023 LiveLaw (SC) 251 : AIR 2023 SC 1762 : 2023 INSC 300

Consumer Protection Rules, 2020 - Supreme Court directs Centre and States to amend the rules in terms of the directions in Secretary, Ministry of Consumer Affairs v. Dr. Mahindra Bhaskar Limaye, 2023 LiveLaw (SC) 161 within a period of three months. In Re: Inaction of the Governments in appointing President and Members/Staff of Districts and State Consumer Disputes Redressal Commission and inadequate infrastructure across India v. Union of India, 2023 LiveLaw (SC) 201

Contempt

Supreme Court sentences NRI father to 6 months imprisonment, imposes Rs 25 lakhs fine violating directions to bring minor son to india. Meenal Bhargava v. Naveen Sharma, 2023 LiveLaw (SC) 475 : 2023 INSC 540

Contempt of Courts Act, 1971 - Supreme Court affirms contempt of court proceedings against advocate for raising frivolous allegation that another lawyer was taking money from clients in the name of judges - Reduces penalty from Rupees 2 lakhs to Rs 1 Lakh. Gunjan Sinha @ Kanishk Sinha v. State of West Bengal, 2023 LiveLaw (SC) 230

Advocate making baseless allegation that another lawyer took money in judge's name; Supreme Court affirms contempt of court proceedings. Gunjan Sinha @ Kanishk Sinha v. State of West Bengal, 2023 LiveLaw (SC) 230

Courts should not summon the appearance of officials at the “Drop of the Hat”. State of U.P. v. Prahalad Singh, 2023 LiveLaw (SC) 176

Contempt of Courts Act, 1971 - While it is open to the High court to come to any conclusion on the basis of the pleadings and materials available on record, it is not open to the Court to summon the appearance of the officials at the drop of the hat. State of U.P. v. Prahalad Singh, 2023 LiveLaw (SC) 176

Contempt of Courts Act 1971 - When an order has been passed by the highest Court of the country, there is no occasion for the Collector to seek permission for implementation of the orders passed by this Court. Junagadh Municipal Corporation v. Adarsh Cooperative Society, 2023 LiveLaw (SC) 103

When the highest court of the country has passed an order, the collector cannot await permission to implement it. Junagadh Municipal Corporation v. Adarsh Cooperative Society, 2023 LiveLaw (SC) 103

Contempt of Courts Act, 1971

Contempt of Courts Act, 1971 - The Supreme Court has sentenced a non-resident Indian to six months imprisonment and imposed a fine of Rs 25 lakhs for contempt of court, for failing to bring back his minor son to India in terms of the orders passed by the top court from time to time and the undertaking given by him before the court to this effect. The acts and omissions of the contemnor, amounted to both civil and criminal contempt, calling for a strict action against him. The power of the court to punish a person for contempt is unrestricted by the Act. Meenal Bhargava v. Naveen Sharma, 2023 LiveLaw (SC) 475 : 2023 INSC 540

Corruption

Approver need not be examined as witness by magistrate when cognizance is taken by Special Court under PC Act. A. Srinivasulu v. State of Rep. by the Inspector of Police, 2023 LiveLaw (SC) 485 : 2023 INSC 971

Supreme Court acquits man accused of taking rs 300 bribe twenty years ago. Jagtar Singh v. State of Punjab, 2023 LiveLaw (SC) 232 : AIR 2023 SC 1567 : 2023 INSC 279

PC Act - Constitution Bench Judgment allowing circumstantial evidence does not dilute requirement of proof beyond reasonable doubt. Neeraj Dutta v. State (GNCTD), 2023 LiveLaw (SC) 211 : 2023 Cri. LJ 1856 : 2023 INSC 245 : (2023) 2 SCR 997

Desirable that FIRs in corruption cases aren't quashed at the investigation stage: Supreme Court To High Courts. State of Chattisgarh v. Aman Kumar Singh, 2023 LiveLaw (SC) 158 : AIR 2023 SC 1441 : 2023 INSC 189

Corruption is the main reason for not achieving equal distribution of wealth; botched investigations of scams a bigger scam. State of Chattisgarh v. Aman Kumar Singh, 2023 LiveLaw (SC) 158 : AIR 2023 SC 1441 : 2023 INSC 189

Criminal Law

Section 197 Cr.P.C. - Sanction required even for acts done in excess of official duty. A. Srinivasulu v. State of Rep. by the Inspector of Police, 2023 LiveLaw (SC) 485 : 2023 INSC 971

Section 319 Cr.P.C. - Person not named in the FIR can be added as accused if there's sufficient evidence of his involvement. Jitendra Nath Mishra v. State of U.P., 2023 LiveLaw (SC) 480 : AIR 2023 SC 2757 : 2023 INSC 576

'Courts below failed to properly evaluate evidence': Supreme Court acquits two convicts in 22 year old murder case. Ravi Mandal v. State of Uttarakhand, 2023 LiveLaw (SC) 470 : AIR 2023 SC 2554 : 2023 INSC 552

Proposed accused has the right to be heard in revision filed against dismissal of petition under Section 156(3) Cr.P.C. Santhakumari v. State of Tamil Nadu, 2023 LiveLaw (SC) 465

Criminal Investigation – Voice Sample - Magistrate has the power to order the collection of a voice sample for the purpose of investigation. Pravinsinh Nrupatsinh Chauhan v. State of Gujarat, 2023 LiveLaw (SC) 463

'Numerous lapses in investigation': Supreme Court frees man awarded death penalty in case for rape & murder of 6 year old girl. Prakash Nishad @ Kewat Zinak Nishad v. State of Maharashtra, 2023 LiveLaw (SC) 461 : AIR 2023 SC 2938 : 2023 INSC 561

Supreme Court sets aside Bombay HC Order acquitting G.N. Saibaba, Remands appeals to HC for consideration by another Bench. State of Maharashtra v. Mahesh Kariman Tirki, 2023 LiveLaw (SC) 438

Supreme Court laments trial judges not using section 313(5) Cr.P.C.; asks judicial academies to take notice. Raj Kumar @ Suman v. State (NCT of Delhi), 2023 LiveLaw (SC) 434 : AIR 2023 SC 3113 : 2023 INSC 520

Supreme Court sets aside conviction in 23 year old murder case; says prosecution failed to prove chain of circumstances. Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418 : 2023 INSC 443

The District Police Chief can't order further investigation without permission from the Magistrate or Higher Court. Peethambaran v. State of Kerala, 2023 LiveLaw (SC) 402 : 2023 INSC 481

'Court not to sermonise on morality': SC allows premature release of woman convicted for killing sons while attempting suicide. Nagarathinam v. State through the Inspector of Police, 2023 LiveLaw (SC) 401 : AIR 2023 SC 2263 : 2023 INSC 495

Supreme Court sets aside Magistrate's order directing police investigation into allegation of rape against BJP leader Kailash Vijayvargiya. Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023 LiveLaw (SC) 396 : 2023 INSC 494

Section 389 Cr.P.C. - Sentence can be suspended in appeal only if the convict has fair chances of acquittal. Omprakash Sahni v. Jai Shankar Chaudhary, 2023 LiveLaw (SC) 389 : AIR 2023 SC 2202 : (2023) 6 SCC 123 : 2023 INSC 478

The Home Secretary cannot order further investigation or reinvestigation of case by another agency. Bohatie Devi v. State of Uttar Pradesh, 2023 LiveLaw (SC) 376 : 2023 INSC 465

Investigating officer did not meet the obligations': Supreme Court reverses murder conviction imposed by Trial Court, affirmed by High Court. Maghavendra Pratap Singh @ Pankaj Singh v. State of Chhattisgarh, 2023 LiveLaw (SC) 358 : 2023 INSC 415

Not necessary to review / recall / quash order accepting closure report before carrying out further investigation. State v. Hemendhra Reddy, 2023 LiveLaw (SC) 365 : 2023 INSC 460

Criminal Investigation - Criminal offence is considered as a wrong against the State and the Society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay. Mere delay in approaching a Court of law would not by itself afford a ground for dismissing the case. Though it may be a relevant circumstance in reaching a final verdict. (Para 84) State v. Hemendhra Reddy, 2023 LiveLaw (SC) 365 : 2023 INSC 460

Supreme Court commutes death sentence of man who murdered his sister & her lover from another caste; takes note of 'social pressure'. Digambar v. State of Maharashtra, 2023 LiveLaw (SC) 361 : AIR 2023 SC 2827 : 2023 INSC 445

Supreme Court sets aside Telangana HC Order directing CBI to provide printed questions to YSRCP MP Avinash Reddy; says such orders gravely prejudice investigation. Suneetha Narreddy v. Y.S. Avinash Reddy, 2023 LiveLaw (SC) 355 : 2023 INSC 422

If the prosecution proposes death sentence, it must produce before the Trial Court information about the background of the accused. Vikas Chaudhary v. State of Delhi, 2023 LiveLaw (SC) 336 : 2023 INSC 412

Supreme Court shocked to see police filing closure report in case where FIR was quashed; directs to discontinue such practice. State of Uttarakhand v. Umesh Kumar Sharma, 2023 LiveLaw (SC) 335

Appellate Court should separately hear convict on quantum of sentence when acquittal is reversed. Fedrick Cutinha v. State of Karnataka, 2023 LiveLaw (SC) 326 : AIR 2023 SC 2102 : 2023 INSC 384

Asaram Bapu Case - Supreme Court sets aside Rajasthan HC order to summon IPS officer Ajay Lamba as witness. State of Rajasthan v. Asharam @ Ashumal, 2023 LiveLaw (SC) 316 : AIR 2023 SC 2228 : 2023 INSC 383

Trial Courts, Public Prosecutors should be vigilant while framing of charges against accused. Soundarajan v. State, 2023 LiveLaw (SC) 314 : AIR 2023 SC 2136 : 2023 INSC 377

Accused not entitled to default bail when first extension (passed in absence of accused) wasn't challenged & second extension was passed in his presence. Qamar Ghani Usmani v. State of Gujarat, 2023 LiveLaw (SC) 297 : AIR 2023 SC 1901 : (2023) 2 SCR 824 : 2023 INSC 337

The High Court cannot quash criminal proceedings at Section 482 Cr.P.C. stage by saying charges aren't proved. Central Bureau of Investigation v. Aryan Singh, 2023 LiveLaw (SC) 292 : AIR 2023 SC 1987 : (2023) 2 SCR 819 : 2023 INSC 338

Alleged lack of jurisdiction of court no ground to transfer case: Supreme Court dismisses PFI student wing leader's plea. Ka Rauf Sherif v. Directorate of Enforcement, 2023 LiveLaw (SC) 284 : (2023) 6 SCC 92 : 2023 INSC 347

View that there cannot be police custody beyond 15 days from date of arrest should be reconsidered. Central Bureau of Investigation v. Vikas Mishra @ Vikash Mishra, 2023 LiveLaw (SC) 283 : AIR 2023 SC 1808 : (2023) 6 SCC 49 : 2023 INSC 345

Power to transfer cases to be used sparingly; may cast unnecessary aspersions on state judiciary & prosecution agency. Afjal Ali Sha @ Abjal Shaukat v. State of West Bengal, 2023 LiveLaw (SC) 268 : (2023) 2 SCR 1090 : 2023 INSC 257

'Possible that police set up false case after killing deceased in the process of arrest': Supreme Court acquits 4 in 1989 murder case. Pulen Phukan v. State of Assam, 2023 LiveLaw (SC) 265 : AIR 2023 SC 1639 : 2023 Cri LJ 1789 : 2023 INSC 305

The job of the prosecution is not to accept the complainant's version as Gospel Truth and proceed in that direction but the investigation must be made in a fair and transparent manner and must ascertain the truth. The evidence collected during investigation should then be analysed by the Investigating Officer and accordingly a report under Section 173(2) of the CrPC should be submitted. Further, the duty of the Trial Court is to carefully scrutinise the evidence, try to find out the truth on the basis of evidence led. Wherever necessary the Trial Court may itself make further inquiry on its own with regard to facts and circumstances which may create doubt in the minds of the Court during trial. If the investigation is unfair and tainted then it is the duty of the Trial Court to get the clarifications on all the aspects which may surface or may be reflected by the evidence so that it may arrive at a just and fair conclusion. If the Trial Court fails to exercise this power and discretion vested in it then the judgment of the Trial Court may be said to be vitiated. [Para 13] Pulen Phukan v. State of Assam, 2023 LiveLaw (SC) 265 : AIR 2023 SC 1639 : 2023 Cri LJ 1789 : 2023 INSC 305

The Courts must refrain from committing such grave errors in the future, whereby innocent people are made to suffer incarceration for over a period of nearly two decades, without proper appreciation of evidence. (Para 19) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227 : (2023) 2 SCR 746 : 2023 INSC 241

Delay in sending FIR - Unless serious prejudice is caused, mere delay in sending the FIR to the Magistrate would not, by itself, have a negative effect on the case of the prosecution. One of the external checks against ante-dating or antetiming an FIR is the time of its dispatch to the Magistrate or its receipt by the Magistrate. A dispatch of a copy of the FIR forthwith ensures that there is no manipulation or interpolation in the FIR. (Para 17.6) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225 : (2023) 5 SCC 391 : (2023) 2 SCR 965 : 2023 INSC 238

Delay in the FIR reaching the Magistrate - It is the settled position of law that each and every delay caused is not fatal to a case in the absence of demonstrated prejudice. In the present case, though, while there is reliance at the Bar on this principle no submission has been made to show prejudice having been caused to the accused. Statements sans adequate backing cannot sway the Court. Even the delay in the receipt of the FIR with the concerned Magistrate cannot be a reason to disbelieve the prosecution case. It is not a case of non-compliance of provisions equally the delay is not inordinate so as to cast any doubt. (Para 20) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225 : (2023) 5 SCC 391 : (2023) 2 SCR 965 : 2023 INSC 238

Power of Court of Appeal - The Court of appeal has wide powers of appreciation of evidence in an order of acquittal as in the order of conviction, along with the rider of presumption of innocence which continues across all stages of a case. Such Court should give due importance to the judgment rendered by the Trial Court. The High Court, being the First Appellate Court must discuss/re-appreciate the evidence on record. Failure to do so is a good ground enough to remand the matter for consideration. (Para 17.9) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225 : (2023) 5 SCC 391 : (2023) 2 SCR 965 : 2023 INSC 238

Preponderance of probabilities - To entitle a person to the benefit of a doubt arising from a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. (Para 17.5) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225 : (2023) 5 SCC 391 : (2023) 2 SCR 965 : 2023 INSC 238

Constitutional Courts can impose life sentence for fixed term without remission even in cases where the death penalty wasn't imposed. Shiva Kumar @ Shiva @ Shivamurthy v. State of Karnataka, 2023 LiveLaw (SC) 252 : AIR 2023 SC 1774 : 2023 INSC 306

Accused can't claim right of hearing before registration of FIR. State Bank of India v. Rajesh Agarwal, 2023 LiveLaw (SC) 243 : AIR 2023 SC 1859 : (2023) 6 SCC 1 : 2023 INSC 303

Smuggling & Foreign Exchange Manipulations - Necessary to deprive persons engaged in such acts of their ill-gotten gains. Platinum Theatre v. Competent Authority, 2023 LiveLaw (SC) 226 : AIR 2023 SC 1614 : 2023 INSC 273

Supreme Court questions practice of some trial courts to remand accused the moment they appear in response to summons. Mahdoom Bava v. Central Bureau of Investigation, 2023 LiveLaw (SC) 218 : AIR 2023 SC 1570 : 2023 INSC 263

Supreme Court dismisses Cardinal George Alencherry's plea to quash criminal cases over land scam. Cardinal Mar George Alencherry v. State of Kerala, 2023 LiveLaw (SC) 203 : (2023) 2 SCR 1014 : 2023 INSC 250

Section 438 Cr.P.C. - Can HCs refuse to entertain anticipatory bail pleas for not exhausting Sessions Court remedy? Supreme Court to Consider. Gauhati High Court Bar Association v. State of Assam, 2023 LiveLaw (SC) 177

Section 319 Cr.P.C. power is to be exercised only if strong & cogent evidence occurs against a person. Vikas Rathi v. State of U.P., 2023 LiveLaw (SC) 172 : (2023) 2 SCR 6 : 2023 INSC 186

Sex with minor wife: Supreme Court acquits husband of rape relying on exception 2 to Sec 375 IPC. Siddaruda @ Karna v. State of Karnataka, 2023 LiveLaw (SC) 170

Section 313 Cr.P.C. - Written statement of the accused has to be considered in the light of prosecution evidence. Premchand v. State of Maharashtra, 2023 LiveLaw (SC) 168 : AIR 2023 SC 1487 : (2023) 5 SCC 522 : (2023) 2 SCR 119 : 2023 INSC 207

Section 313 Cr.P.C.: Supreme Court Summarises 10 well-settled principles. Premchand v. State of Maharashtra, 2023 LiveLaw (SC) 168 : AIR 2023 SC 1487 : (2023) 5 SCC 522 : (2023) 2 SCR 119 : 2023 INSC 207

Mere intimidation to silence kidnapped child victim not sufficient to prove threat to life & limb. Ravi Dhingra v. State Haryana, 2023 LiveLaw (SC) 167 : AIR 2023 SC 1243 : 2023 Cri LJ 1913 : 2023 INSC 182 : (2023) 6 SCC 76 : (2023) 2 SCR 164

Mere breach of contract can't be the basis for a criminal case for cheating. Sarabjit Kaur v. State of Punjab, 2023 LiveLaw (SC) 157 : (2023) 5 SCC 360 : 2023 INSC 188

Transfer of Investigation to CBI - The power to transfer the investigation is an extraordinary power. It is to be used very sparingly and in an exceptional circumstance where the Court on appreciating the facts and circumstance arrives at the conclusion that there is no other option of securing a fair trial without the intervention and investigation by the CBI or such other specialized investigating agency which has the expertise. Royden Harold Buthello v. State of Chhattisgarh, 2023 LiveLaw (SC) 154 : AIR 2023 SC 1231 : 2023 INSC 180

Section 256 Cr.P.C. - Not proper to acquit the accused merely for the non-appearance of the complainant who was already examined. BLS Infrastructure Ltd. v. Rajwant Singh, 2023 LiveLaw (SC) 153 : (2023) 4 SCC 326 : (2023) 2 SCR 183 : 2023 INSC 187

State should not be arbitrary in allowing premature release; policy must be applied equally to all. Rajkumar vs State of Uttar Pradesh, 2023 LiveLaw (SC) 144 : 2023 INSC 718

Transfer of criminal case from one state to another implicitly reflect on the credibility of the State Judiciary & Prosecution Agency. Neelam Pandey v. Rahul Shukla, 2023 LiveLaw (SC) 141

'Mere framing of charges no bar to order further investigation; Victim has fundamental right of fair investigation'. Anant Thanur Karmuse v. State of Maharashtra, 2023 LiveLaw (SC) 136 : (2023) 5 SCC 802 : 2023 INSC 168

Supreme Court upholds life sentence for mother who killed her 5-year old child. Vahitha v. State of Tamil Nadu, 2023 LiveLaw (SC) 132 : AIR 2023 SC 1165 : 2023 INSC 151

Section 319 Cr.P.C.: Supreme Court reiterates procedural safeguards to prevent misuse of power to summon additional accused. Juhru v. Karim, 2023 LiveLaw (SC) 128 : AIR 2023 SC 1160 : (2023) 5 SCC 406 :(2023) 2 SCR 519 : 2023 INSC 148

Criminal proceedings inter-se parties can be quashed if they have genuinely settled matrimonial disputes. Rangappa Javoor v. State of Karnataka, 2023 LiveLaw (SC) 74

To consider premature release of convict, State Policy prevailing on the date of conviction is relevant. Hitesh v. State of Gujarat, 2023 LiveLaw (SC) 72

Section 482 Cr.P.C. | Pendency of suit concealed, cloak of criminal offence given to civil dispute: Supreme Court quashes criminal proceedings. Usha Chakraborty v. State of West Bengal, 2023 LiveLaw (SC) 67 : AIR 2023 SC 688 : 2023 INSC 86

Criminal Investigation - A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version -Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere non-examination would not render the prosecution case fatal - Though mere defects in the investigative process by itself cannot constitute ground for acquittal, it is the legal obligation of the Court to examine carefully in each case the prosecution evidence de hors the lapses committed by the Investigating Officer to find out whether the evidence brought on record is at all reliable and whether such lapses affect the object of finding out the truth. (Para 28, 42) Munna Lal v. State of Uttar Pradesh, 2023 LiveLaw (SC) 60 : AIR 2023 SC 634 : 2023 Cri LJ 1726 : 2023 INSC 78

Criminal Trial - The circumstance that most of the witnesses were related to the deceased does not per se exclude their testimony. (Para 14) Prasad Pradhan v. State of Chhattisgarh, 2023 LiveLaw (SC) 59 : AIR 2023 SC 643 : 2023 Cri LJ 1649 : (2023) 1 SCR 241 : 2023 INSC 79

Chargesheets not 'public documents', Can't direct investigating agencies to upload them on websites. Saurav Das v. Union of India, 2023 LiveLaw (SC) 52 : AIR 2023 SC 615 : 2023 INSC 76

Chargesheets - Supreme Court refuses to direct that chargesheets filed by investigating agencies should be uploaded on a public website for public access- Court says that the directions in Youth Bar Association of India vs Union of India (2016) 9 SCC 473 regarding uploading of FIR cannot be extended to chargesheets - Court directed the copies of the FIRs to be published within 24 hours on the police websites or on the websites of the State Government, looking to the interest of the accused and so that innocent accused are not harassed and they are able to get the relief from the competent court and they are not taken by surprise. Therefore, the directions issued by this Court are in favour of the accused, which cannot be stretch to the public at large so far as the chargesheets are concerned. (Para 4.1) Saurav Das v. Union of India, 2023 LiveLaw (SC) 52 : AIR 2023 SC 615 : 2023 INSC 76

Default bail can be cancelled on merits after presentation of chargesheet. State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

View that default bail cannot be cancelled on merits will reward lethargic investigation. State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457 : (2023) 4 SCC 253 : (2023) 1 SCR 741 : 2023 INSC 44

Grant of Remission - Presiding Judge should give adequate reasons while giving opinion under Section 432(2) Cr.P.C. Jaswant Singh v. State of Chhattisgarh, 2023 LiveLaw (SC) 33 : AIR 2023 SC 419 : 2023 INSC 31

'Reasonable time should be given for investigation': SC sets aside madras HC order quashing FIR against youtuber Maridhas in 4 days. State represented by the Inspector of Police v. Maridass, 2023 LiveLaw (SC) 25

Supreme Court takes exception to Madras High Court quashing an FIR in four days without giving adequate time for investigation. State represented by the Inspector of Police v. Maridass, 2023 LiveLaw (SC) 25

"Private civil dispute converted to criminal proceedings": Supreme Court quashes complaint alleging offence under SC-ST (prevention of Atrocities) Act. B. Venkateswaran v. P. Bakthavatchalam, 2023 LiveLaw (SC) 14 : AIR 2023 SC 262 : 2023 INSC 18

The Parole period can't be included in the period of actual imprisonment. Rohan Dhungat v. State of Goa, 2023 LiveLaw (SC) 10 : AIR 2023 SC 265 : (2023) 1 SCR 1029 : 2023 INSC 16

Magistrate Must Examine If Complaint Constitutes Only A Civil Wrong Before Summoning Accused. Deepak Gaba v. State of Uttar Pradesh, 2023 LiveLaw (SC) 3 : AIR 2023 SC 228 : (2023) 3 SCC 423 : 2023 INSC 1

"Burden to prove mental incapacity is on the defence": Supreme Court upholds conviction of man accused of killing his two sons. Prem Singh v. State of NCT of Delhi, 2023 LiveLaw (SC) 2 : AIR 2023 SC 193 : (2023) 3 SCC 372 : 2023 INSC 3

Criminal Trial

At the stage of hearing on the charges, the entire evidence produced by the prosecution is to be believed and if no offence is made out, then only an accused can be discharged. Truthfulness, sufficiency and acceptability of the material produced can be done only at the stage of trial. At the stage of charge, the Court has to satisfy that a prima facie case is made out against the accused persons. Interference of the Court at that stage is required only if there is strong reasons to hold that in case the trial is allowed to proceed, the same would amount to abuse of process of the Court. (Para 11) Captain Manjit Singh Virdi v. Hussain Mohammed Shattaf, 2023 LiveLaw (SC) 462 : AIR 2023 SC 2480 : 2023 INSC 555 : (2023) 7 SCC 633

The High Court has not even referred to the evidence collected by Investigating Agency produced alongwith chargesheet in its entirety. Rather there is selective reference to the statements of some of the persons recorded during investigation. It shows that there was total non-application of mind. The High Court had exercised the jurisdiction in a manner which is not vested in it to scuttle the trial of a heinous crime. (Para 20) Captain Manjit Singh Virdi v. Hussain Mohammed Shattaf, 2023 LiveLaw (SC) 462 : AIR 2023 SC 2480 : 2023 INSC 555 : (2023) 7 SCC 633

The duty of the presiding judge of a criminal trial is not to watch the proceedings as a spectator or a recording machine but he has to participate in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. (Para 11, 12) Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395 : AIR 2023 SC 2795 : 2023 INSC 493

Criminal Trial - Motive - If motive is proved, that would supply another link in the chain of circumstantial evidence but, absence of motive cannot be a ground to reject the prosecution case, though such an absence of motive is a factor that weighs in favour of the accused. (Para 15, 17.1) Prem Singh v. State of NCT of Delhi, 2023 LiveLaw (SC) 2 : AIR 2023 SC 193 : (2023) 3 SCC 372 : 2023 INSC 3

Criminal Trial - Right to speedy trial, including speedy disposal of an appeal, is not the exclusive right of an accused, but an obligation of the court towards the society in general, and the victim in particular. (Para 17) State of Rajasthan v. Asharam @ Ashumal, 2023 LiveLaw (SC) 316 : AIR 2023 SC 2228 : 2023 INSC 383

Contract Law

No judicial review in commercial matters unless a case of arbitrariness, mala fide, bias or irrationality is made out. Tender / Contract - Courts not to needlessly interfere in contracts involving technical issues. The judges do not possess the necessary expertise to adjudicate technical issues beyond their domain. Restraint must be practiced in cases where the Courts are aware that their interference in technical commercial matters would incur loss to the Public Exchequer. Tata Motors Ltd. v. BrihanMumbai Electric Supply & Transport Undertaking, 2023 LiveLaw (SC) 467 : AIR 2023 SC 2717 : 2023 INSC 574

The Court should not ordinarily interfere in matters relating to tender or contract. A writ court should refrain from imposing its decision over the employer with respect to whether or not to accept the bid of a tenderer, unless something very gross or palpable is pointed out. Tata Motors Ltd. v. Brihan Mumbai Electric Supply & Transport Undertaking, 2023 LiveLaw (SC) 467 : AIR 2023 SC 2717 : 2023 INSC 574

When the Court initiates fresh tender at a stage when the contract is underway, the same consumes time and incurs losses to the public exchequer. The financial burden / implications on the public exchequer that the State may have to meet with if the Court directs issue of a fresh tender notice, should be one of the guiding factors that the Court should keep in mind. Tata Motors Ltd. v. Brihan Mumbai Electric Supply & Transport Undertaking, 2023 LiveLaw (SC) 467 : AIR 2023 SC 2717 : 2023 INSC 574

The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. Tata Motors Ltd. v. Brihan Mumbai Electric Supply & Transport Undertaking, 2023 LiveLaw (SC) 467 : AIR 2023 SC 2717 : 2023 INSC 574

Party estopped from questioning the amount levied as per contract after signing it. Chief Engineer, Water Resources Department v. Rattan India Power Ltd., 2023 LiveLaw (SC) 32 : AIR 2023 SC 422 : (2023) 1 SCR 507 : 2023 INSC 33

Awarding Govt. contracts through public tenders preferable; Departure from tender route must be reasonable. Indian Medicines Pharmaceuticals Corporation Ltd. v. Kerala Ayurvedic Co Operative Society Ltd., 2023 LiveLaw (SC) 6 : AIR 2023 SC 314 : (2023) 1 SCR 473 : 2023 INSC 7

Government Contracts - Government action must be just, fair and reasonable and in accordance with the principles of Article 14; and (ii) While government can deviate from the route of tenders or public auctions for the grant of contracts, the deviation must not be discriminatory or arbitrary. The deviation from the tender route has to be justified and such a justification must comply with the requirements of Article 14 - Government contracts involve expenditure out of the public exchequer. Since they involve payment out of the public exchequer, the moneys expended must not be spent arbitrarily. The State does not have absolute discretion while spending public money. (Para 21-22) Indian Medicines Pharmaceuticals Corporation Ltd. v. Kerala Ayurvedic Co Operative Society Ltd., 2023 LiveLaw (SC) 6 : AIR 2023 SC 314 : (2023) 1 SCR 473 : 2023 INSC 7

Tenders - The process of inviting tenders ensures a level playing field for competing entities. While there may be situations which warrant a departure from the precept of inviting tenders or conducting public auctions, the departure must not be unreasonable or discriminatory. (Para 16) Indian Medicines Pharmaceuticals Corporation Ltd. v. Kerala Ayurvedic Co Operative Society Ltd., 2023 LiveLaw (SC) 6 : AIR 2023 SC 314 : (2023) 1 SCR 473 : 2023 INSC 7

Contract Act, 1872 - Principle of Estoppel - Signing the agreement and issuing an undertaking would estop Respondent No.1 from challenging the levy of Rs.1,00,000 as irrigation restoration charges- Court refuses to challenge the levy of 'irrigation restoration charges' by the Water Department from a company for supplying water for industrial purposes as per agreement. Chief Engineer, Water Resources Department v. Rattan India Power Ltd., 2023 LiveLaw (SC) 32 : AIR 2023 SC 422 : (2023) 1 SCR 507 : 2023 INSC 33

Court Deposit

The Supreme Court directs all courts/tribunals to mandatorily deposit amounts deposited by parties with registry in a bank/financial institution. K.L. Suneja v. Manjeet Kaur Monga, 2023 LiveLaw (SC) 68 : AIR 2023 SC 705 : 2023 INSC 89

Courts / Tribunals should mandatorily deposit amounts deposited by litigants with the Registry or Office in a bank account - Supreme Court issues directions - All courts and judicial forums should frame guidelines in cases where amounts are deposited with the office / registry of the court / tribunal, that such amounts should mandatorily be deposited in a bank or some financial institution, to ensure that no loss is caused in the future - These guidelines should be embodied in the form of appropriate rules, or regulations of each court, tribunal, commission, authority, agency, etc. exercising adjudicatory power. (Para 35) K.L. Suneja v. Manjeet Kaur Monga, 2023 LiveLaw (SC) 68 : AIR 2023 SC 705 : 2023 INSC 89

CRZ Notification

CRZ Notification 2011: Storage facility for edible oil not allowed outside port area; Supreme Court affirms quashing of post-facto clearance. K.T.V. Health Food Pvt. Ltd. v. Union of India, 2023 LiveLaw (SC) 77 : AIR 2023 SC 808 : (2023) 5 SCC 440 : 2023 INSC 91

Coastal Regulation Zone Notification 2011 - Storage facility for edible oil not allowed outside port areas- the word 'within' used for CRZ-I and 'in' used for CRZ-II in the CRZ Notification of 2011 cannot be interpreted to include what is outside the port areas-The maker of the notification has not even contemplated the activities in question in a 'port area'. We must here elucidate and observe that if the contention is to be upheld that a storage tank can be permitted outside the port limits, it will introduce chaos. The question would arise as to up to what distance from the port area it would be considered as the 'in the port area'. The 2011 Notification cannot receive an interpretation which would leave matters of moment to be afflicted with the vice of uncertainty. This is apart from the importance of avoiding an interpretation which seemingly allows free play in the joints to the Administrator but, atthe same time, vest an arbitrary power in him. (Para 58) K.T.V. Health Food Pvt. Ltd. v. Union of India, 2023 LiveLaw (SC) 77 : AIR 2023 SC 808 : (2023) 5 SCC 440 : 2023 INSC 91

Cultivating Tenants Protection Act, 1955 (Tamil Nadu)

Cultivating Tenants Protection Act, 1955 (Tamil Nadu); Section 3 - Late payment of rent as per the direction of the Revenue Court, is clearly a valid ground for effecting eviction of the cultivating tenant. The 1955 Act confers a privilege on the cultivating tenant vis-a-vis the landlord, by which the cultivating tenant is protected from eviction by the landlord. Further, the scope of eviction of the cultivating tenant at the behest of the landlord, is circumscribed by the Act. Thus, the limited grounds for eviction of the cultivating tenant by the landlord under the Act, must not be frustrated by granting some extra benefit or indulgence to the cultivating tenant. K. Chinnammal v. L.R. Eknath, 2023 LiveLaw (SC) 437 AIR 2023 SC 3534 : (2023) 6 SCR 831 : 2023 INSC 518

Customs

Supreme Court upholds withdrawal of Customs notification granting concession on import of printing machinery, on the ground of indigenous angle. Union of India v. A.B.P. Pvt. Ltd; 2023 LiveLaw (SC) 430 : AIR 2023 SC 2343 : 2023 INSC 525

Customs Act, 1962 - Supreme Court delivers split verdict on jurisdiction of settlement commission in relation to goods under Section 123. Yamal Manojbhai v. Union of India, 2023 LiveLaw (SC) 399 : 2023 INSC 498

Customs Act, 1962

Customs Act, 1962 - The Supreme Court delivered a split verdict in respect to the issue whether jurisdiction of Settlement Commission under Section 127B of the Customs Act, 1962 can be invoked in relation to goods to which Section 123 applies. While considering the conflicting judgments of the Bombay High Court and the Delhi High Court the bench expressed divergent views. Supporting the law laid down by the Bombay High Court, Justice Krishna Murari opined that in cases of seizures of smuggled goods within the customs areas, Section 123 of the Customs Act would not be applicable and the accused can make application to Settlement Commission under Section 127B. Justice Sanjay Karol opined that the bar in Section 127B precludes filing an application for settlement in relation to goods to which Section 123 applies [for example gold and watches are specified under S.123]. The Division Bench asked the Registry to place the matter before the Chief Justice of India for appropriate order. Yamal Manojbhai v. Union of India, 2023 LiveLaw (SC) 399 : 2023 INSC 498

Customs Act, 1962 - The Supreme Court has upheld the withdrawal of customs notification which granted customs duty concession to “Rotary Printing Machine” of 'single width two plate variety', on the ground of indigenous angle, i.e., availability of the equipment in India. The same cannot be characterized as an irrelevant factor for withdrawing tax concession. The grant of exemption to a class of goods, which are similar to those manufactured within the country, is likely to adversely impact such manufacturers or producers. Thus, the same is a germane and relevant factor for withdrawal of such exemption. The executive has an exclusive domain in fiscal and economic matters, including determining the relevant factors for granting, refusing or amending exemptions. Thus, the role of the court is confined to decide if the executive's decision is backed by germane and not irrelevant reasons. Union of India v. A.B.P. Pvt. Ltd; 2023 LiveLaw (SC) 430 : AIR 2023 SC 2343 : 2023 INSC 525

D

Death Penalty

Mercy Petition - The Supreme Court refused to commute the death sentence of Babbar Khalsa terrorist Balwant Singh Rajoana to life imprisonment on the ground of the long pendency of the mercy petition before the President of India. The BKI operative was convicted for his role in the assassination of the former chief minister of Punjab, Beant Singh, in August 1995. There are directions by this Court vide orders dated 4.12.2020 and 2.5.2022 to dispose of the Mercy Petition of the petitioner. The Ministry of Home Affairs, upon material consideration of various reports from its different branches, has come to the conclusion that the consideration may be deferred as it could have an impact of compromising the security of the nation or creating law and order situation. It would not be within the domain of this Court to delve upon the decision of the competent authority to defer taking of any decision at present. It is within the domain of the executive to take a call on such sensitive issues. As such this Court does not deem it appropriate to issue any further directions. The stand of the Ministry of Home Affairs to defer the decision on the Mercy Petition of the petitioner is also a decision for the reasons given thereunder. It actually amounts to a decision declining to grant the same for the present. It is, however, directed that the competent authority, in due course of time, would again as and when it is deemed necessary, may deal with the Mercy Petition, and take a further decision. (Para 19 - 23) Balwant Singh v. Union of India, 2023 LiveLaw (SC) 391 : AIR 2023 SC 2195 : 2023 INSC 482

Delay in disposal of the Mercy Petition - the argument regarding pendency of the Mercy Petition and there being a delay of more than 10 years cannot be sustained. Firstly, the petitioner himself never submitted any Mercy Petition. The alleged Mercy Petition of year 2012 was filed by Shiromani Gurudwara Prabandhak Committee (SGPC). Further, after the communication of the Ministry of Home Affairs dated 27.09.2019, the proposal for considering the commutation of the death sentence of the petitioner was started and a decision was taken to keep the same pending till disposal of the pending appeals before this Court, filed by the coaccused as well as by CBI, as according to the competent authority, it would have a bearing and it could be relevant for taking final decision on the said proposal of commutation. Further, it was after the directions issued by this Court on 04.12.2020 and 02.05.2022 that the matter was again considered by the competent authority and it was decided to defer the question of commutation in view of the reasons given in the affidavit filed by the Ministry of Home Affairs. Thus, it cannot be alleged that there has been an inordinate delay in disposal of the Mercy Petition. The decisions relied in support of submission regarding inordinate delay in disposal of the Mercy Petition and resultantly commutation in such cases having been granted by this Court, do not help the petitioner in view of the facts and situation being different in those three cases and in the present case. (Para 17, 18) Balwant Singh v. Union of India, 2023 LiveLaw (SC) 391 : AIR 2023 SC 2195 : 2023 INSC 482

Mitigating Circumstances - Wherever the prosecution is of the opinion that the crime an accused is convicted for, is so grave that death sentence is warranted, it should carry out the exercise of placing the materials, in terms of Manoj vs State of MP, for evaluation. Vikas Chaudhary v. State of Delhi, 2023 LiveLaw (SC) 336 : 2023 INSC 412

The Supreme Court directs all the States/appropriate authorities to decide mercy petitions against death sentences at the earliest so that the benefit of delay is not accrued to the accused. State of Maharashtra v. Renuka Shinde, 2023 LiveLaw (SC) 305

Even if the death penalty is to be commuted in view of inordinate delay in deciding mercy petition, an order to commute the death sentence to life imprisonment for natural life without any remission ought to be passed. State of Maharashtra v. Renuka Shinde, 2023 LiveLaw (SC) 305

Supreme Court commutes death sentence for kidnapping and murder of a 7 year old child to life imprisonment for not less than twenty years without remission of sentence-the 'rarest of rare' doctrine requires that the death sentence not be imposed only by taking into account the grave nature of crime but only if there is no possibility of reformation in a criminal'. (Para 89) Sundar @ Sundarrajan v. State by Inspector of Police, 2023 LiveLaw (SC) 217 : 2023 INSC 264

Delay

Being short of funds to pay court fees is not a sufficient reason to condone delay to file an appeal. Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 : AIR 2023 SC 698 : (2023) 1 SCR 449 : 2023 INSC 90

Delimitation

Jammu and Kashmir Delimitation - There is no illegality associated with the delimitation/readjustment of Parliamentary constituencies of the Union Territory of J & K undertaken by the Delimitation Commission - there is no illegality associated with the establishment of the Delimitation Commission under the impugned Order dated 6th March 2020 - There is nothing wrong if the Central Government extended the period of appointment of the Chairperson till the task of delimitation/readjustment was completed - findings rendered in the judgment are on the footing that the exercise of power made in the year 2019 under clauses (1) and (3) of Article 370 of the Constitution is valid. We are aware that the issue of the validity of the exercise of the said powers is the subject matter of petitions pending - Nothing stated in this judgment shall be construed as giving our imprimatur to the exercise of powers under clauses (1) and (3) of Article 370 of the Constitution. (Para 31 - 46) Haji Abdul Gani Khan v. Union of India, 2023 LiveLaw (SC) 98 : AIR 2023 SC 951 : 2023 INSC 124

Digitization of Records

The Supreme Court issued directions to all the High Courts for ensuring digitalisation of lower court records. (Para 39 - 42) Jitendra Kumar Rode v. Union of India, 2023 LiveLaw (SC) 347 : 2023 INSC 419

Disability

Disability Rights & CLAT - Supreme Court passes further guidelines to ensure access to CLAT for candidates with disabilities. Arnab Roy v. Consortium of National Law Universities, 2023 LiveLaw (SC) 349 : 2023 INSC 261

Demonetisation

'Any' means 'All' : Supreme Court says Centre can demonetise all series of bank notes invoking Section 26(2) of RBI Act. Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Central Government proposes demonetisation - it must seek the opinion of the Central Board of RBI as RBI is the sole authority to regulate circulation of bank notes and secure monetary stability and generally operate the currency and credit system of the country and to maintain price stability - opinion of the Central Board ought to be an independent and frank opinion - the Central Government can move ahead with demonetisation irrespective of positive or negative opinion of the Central Board, but by enacting a legislation or by way of an Ordinance and not an executive notification. [Para 21] [Dissenting Opinion] Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Demonetisation is not illegal merely because the proposal originated from the central govt; no breach of Sec 26(2) RBI Act. Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Demonetisation is not invalid merely because some citizens suffered through hardships. Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Demonetisation decision making process valid, Supreme Court holds by 4:1 majority; Justice Nagarathna dissents. Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Discussion in parliament on demonetisation would have given it legitimacy: Justice B.V. Nagarathna. Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Objective of demonetisation - the Court does not have the expertise to go into the question whether the object with which demonetisation was effected is served or not - mere errors of Government are nor subject to judicial review, only palpably arbitrary ones are declared void. [Para 247 - 252] Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Period for Exchange of notes - 52 days' period was not unreasonable - if the time for such exchange are not limited, the high denomination bank notes could be circulated and transferred without the knowledge of the authorities concerned, from one person to another and such transferee would have demand exchange of their notes on any subsequent day - thus, the very purpose of demonetisation would be defeated. [Para 286 - 288] Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

RBI has no independent power to accept demonetised notes beyond the period specified in centre's notification. Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

RBI didn't independently apply its mind in recommending demonetisation, Entire exercise carried out in 24 hours : Justice B.V. Nagarathna. Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Supreme Court by 4:1 majority holds that the decision-making process behind the demonetisation of Rs.500 and Rs.1000 currency notes in 2016 was lawful - Justices S Abdul Nazeer, BR Gavai, AS Bopanna and V Ramasubramanian in majority - Justice BV Nagarathna in minority. Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Whether demonetisation achieved its objectives is not relevant to decide its legality. Vivek Narayan Sharma v. Union of India, 2023 LiveLaw (SC) 1 : (2023) 3 SCC 1 : (2023) 1 SCR 1 : 2023 INSC 2

Doctrine

Doctrine of Repugnancy and Doctrine of Occupied Field - Repugnancy arose only in the event of an actual conflict between a state law and a union law, both of which were enacted by the respective legislatures, not in excess of their competence. This was a case where the relevant legislative entry of the state list was expressly made 'subject' to a corresponding entry in the union list, and as such, the Assam legislature was devoid of the necessary legislative competence. Baharul Islam v. Indian Medical Association, 2023 LiveLaw (SC) 57 : AIR 2023 SC 721 : 2023 INSC 81

Domestic Violence

Courts should not impose onerous conditions on complainants under Domestic Violence Act. Bhawna v. Bhay Ram, 2023 LiveLaw (SC) 148

Dowry

Unnatural death of wife in matrimonial home within seven years of marriage in itself not sufficient to convict husband for dowry death. Charan Singh @ Charanjit Singh v. State of Uttarakhand, 2023 LiveLaw (SC) 341 : AIR 2023 SC 2095 : 2023 INSC 404

Criminal proceedings for dowry demand cannot be quashed merely because divorce petition is pending. X v. State of Uttar Pradesh, 2023 LiveLaw (SC) 26

DNA Test

Children's right not to have their legitimacy questioned frivolously is part of their privacy right: Supreme Court on power to order 'DNA Test'. Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, 2023 LiveLaw (SC) 122 : 2023 INSC 146

Drugs and Cosmetics Act, 1940

Drugs and Cosmetics Act, 1940 - Supreme Court quashes criminal proceedings initiated against a doctor for stocking small quantities of medicine - Such stocking will not amount to the offence of unauthorized stocking of medicines as per Section 18(c) - When small quantity of medicine has been found in the premises of a registered medical practitioner, it would not amount to selling their medicines across the counter in an open shop. (Para 9) S. Athilakshmi v. State rep. by the Drugs Inspector, 2023 LiveLaw (SC) 194 : (2023) 2 SCR 914 : 2023 INSC 237

Drugs and Cosmetics Act, 1940; Sections 18 and 27 - The provisions of Section 18 and 27 are relevant provisions under the law, which have a social purpose, which is to protect ordinary citizens from being exploited inter alia, by unethical medical practitioners, and for this reason the punishment under Section 27 can extend up to 5 years under the law, and has a minimum punishment of 3 years. But given the facts and circumstances of the case and considering that the Appellant is a registered medical practitioner, along with the fact that the quantity of medicines which have been seized is extremely small, a quantity which can be easily found in the house or a consultation room of a doctor, in our considered view no offence is made out in the present case. (Para 9) S. Athilakshmi v. State rep. by the Drugs Inspector, 2023 LiveLaw (SC) 194 : (2023) 2 SCR 914 : 2023 INSC 237

Drugs and Cosmetics Rules, 1940; Rule 123 - Schedule K - Drugs stored by a doctor exempted from offence of unauthorized stocking and selling under certain conditions. (Para 8) S. Athilakshmi v. State rep. by the Drugs Inspector, 2023 LiveLaw (SC) 194 : (2023) 2 SCR 914 : 2023 INSC 237

E

Education

Education Department Services (Department of Public Instructions) (Recruitment) Rules, 1967 (Karnataka) - Mere publication of a candidate's name in the Additional List (waiting list) for the purpose of recruitment as a Primary School Teacher, will not create any right to be appointed in favour of such candidate. Entry 66 of the Rules, which talks about additional list, does not mandatorily obligate the State to make appointments. State of Karnataka v. Bharathi S., 2023 LiveLaw (SC) 472 : AIR 2023 SC 2792 : 2023 INSC 573

UP Intermediate Education Act | Appointment process of teachers not concluded without approval by District Inspector of Schools (DIOS). State of Uttar Pradesh v. Rachna Hills, 2023 LiveLaw (SC) 360 : 2023 INSC 441

U.P. Intermediate Education Act | No 'deemed appointment' of selected candidate if dios doesn't give approval within 15 days. State of Uttar Pradesh v. Rachna Hills, 2023 LiveLaw (SC) 360 : 2023 INSC 441

UP Intermediate Education Act | Vacancies which existed before amendment of regulation 17 are to be governed by amended rules. State of Uttar Pradesh v. Rachna Hills, 2023 LiveLaw (SC) 360 : 2023 INSC 441

Court cannot declare equivalency of a course. Unnikrishnan C.V. v. Union of India, 2023 LiveLaw (SC) 256 : AIR 2023 SC 1943 : 2023 INSC 304

Post graduate degree from an open university without undergoing a basic degree course is not valid. P. Raman v. Government of Tamil Nadu, 2023 LiveLaw (SC) 169

There cannot be any school without a playground. Even the students, who study in such a school are entitled to a good environment - Supreme Court directs removal of encroachments near school premises. State of Haryana v. Satpal, 2023 LiveLaw (SC) 163 : AIR 2023 SC 1391 : (2023) 6 SCC 643 : (2023) 2 SCR 12 : 2023 INSC 201

Encroachment of Public Land - Supreme Court sets aside HC direction to legalize unauthorized occupations near a school by taking the market value - SC terms the High Court direction unsustainable - Notes that the school has no playground. State of Haryana v. Satpal, 2023 LiveLaw (SC) 163 : AIR 2023 SC 1391 : (2023) 6 SCC 643 : (2023) 2 SCR 12 : 2023 INSC 201

E-Filing

The judiciary has to modernize and adapt to technology. The tribunals can be no exception. This can no longer be a matter of choice. If some judges are uncomfortable with e-files, the answer is to provide training to them and not to continue with old and outmoded ways of working. If a lawyer or litigant is compelled to file physical copies in addition to e-filed documents, then they will not resort to e-filing. (Para 30) Sanket Kumar Agarwal v. APG Logistics Pvt. Ltd; 2023 LiveLaw (SC) 406 : 2023 INSC 727

It is utterly incomprehensible why NCLAT should insist on physical filing in addition to e-filing. This unnecessarily burdens litigants and the Bar and is a disincentive for e-filing. This duplication of effort is time consuming. It adds to expense. It leaves behind a carbon footprint which is difficult to efface. The judicial process has traditionally been guzzling paper. This model is not environmentally sustainable. (Para 30) Sanket Kumar Agarwal v. APG Logistics Pvt. Ltd; 2023 LiveLaw (SC) 406 : 2023 INSC 727

It would defeat the purpose if in addition to e-filing, the ITATs insist on filing of the appeals in the physical mode. This has to be discontinued since it imposes an unnecessary burden on litigants. If there is a training deficit in respect of the Members of the ITAT, this shall be attended to immediately so that all Members of the ITAT are equipped to handle e-filed cases. CCE & ST, Surat I v. Bilfinder Neo Structo Construction Ltd; 2023 LiveLaw (SC) 333

Practice and Procedure - E-Filing - Supreme Court affirms mandatory e-filing in DRTs and DRATs - Issues directions to enable access to people who are technologically deprived - Directions issued to set up e-sewa kendras. M.P. High Court Bar Association v. Union of India, 2023 LiveLaw (SC) 276 : 2023 INSC 321

E-Filing and Virtual Courts - There can be no gainsaying the fact that e-filing provides transparency and efficiency in the administration of justice. E-filing provides for 24x7 access to the court system and, in fact, facilitates the convenience of lawyers as well as litigants. With the march of technology, it would be too late in the day to postulate that e-filing should not be adopted. As a matter of fact, the decision to take up e-filing must be replicated by other tribunals and courts in the country, including the High Courts in a phased manner and that it eventually becomes mandatory. (Para 12) M.P. High Court Bar Association v. Union of India, 2023 LiveLaw (SC) 276 : 2023 INSC 321

E-Filing - Supreme Court refuses to allow an exception to women lawyers - not inclined to accept the submission that there should be a general exception to female practitioners and litigants. There is no reason to postulate that there is a gender divide in one's inherent ability to use technology. (Para 20) M.P. High Court Bar Association v. Union of India, 2023 LiveLaw (SC) 276 : 2023 INSC 321

Election

Failure to plead material facts concerning alleged corrupt practice is fatal to an election petition. Senthilbalaji V. v. A.P. Geetha, 2023 LiveLaw (SC) 471 : 2023 INSC 571

Maharashtra Case - Governor's decision for floor test wrong, but Uddhav Govt can't be restored as he resigned. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

'Governor can't enter the political arena, floor test not to decide intra-party disputes ': Supreme Court slams Maharashtra Governor. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Shiv Sena Case - Supreme Court refers 'Nabam Rebia' Judgment to larger bench; says it is in conflict with 'Kihoto Hollohan' Judgment. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Shiv Sena Case | Speaker's decision recognising Eknath Shinde as leader & Gogawale as whip illegal; only political party can appoint whip & leader. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Test of legislative majority futile to decide who is 'real' Shiv Sena; ECI's recognition will apply prospectively. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422 : AIR 2023 SC 2406 : 2023 INSC 516

Election petition liable to be dismissed on showing no cause of action; vague allegations not material facts. Kanimozhi Karunanidhi v. A. Santhana Kumar, 2023 LiveLaw (SC) 398 : AIR 2023 SC 2366 : 2023 INSC 499

Supreme Court quashes forgery case against former Punjab CM Prakash Singh Badal & Akali Dal leaders over party's dual constitution. Sukhbir Singh Badal v. Balwant Singh Khera, 2023 LiveLaw (SC) 359 : AIR 2023 SC 3053 : 2023 INSC 466

'Open ballot system in Rajya Sabha elections necessitated to prevent cross-voting' : Supreme Court rejects challenge to Election Rules. Lok Prahari v. Union of India, 2023 LiveLaw (SC) 254

The Supreme Court directs appointment of election commissioners on advise of committee comprising Prime Minister, Leader of Opposition and CJI. Anoop Baranwal v. Union of India, 2023 LiveLaw (SC) 155 : (2023) 6 SCC 161 : (2023) 9 SCR 1 : 2023 INSC 190

'Certain Section of media turned unashamedly partisan; Huge surge of money power in elections': Supreme Court Observes in ECI Case. Anoop Baranwal v. Union of India, 2023 LiveLaw (SC) 155 : (2023) 6 SCC 161 : (2023) 9 SCR 1 : 2023 INSC 190

Election Commission needs permanent secretariat, expenses should be charged on consolidated fund: Supreme Court suggests. Anoop Baranwal v. Union of India, 2023 LiveLaw (SC) 155 : (2023) 6 SCC 161 : (2023) 9 SCR 1 : 2023 INSC 190

Should election commissioners have the same protection as CEC? the Supreme Court majority says no, Justice Ajay Rastogi says yes. Anoop Baranwal v. Union of India, 2023 LiveLaw (SC) 155 : (2023) 6 SCC 161 : (2023) 9 SCR 1 : 2023 INSC 190

Arun Goel's appointment as election commissioner raises pertinent questions at procedure; EC should have 6 years tenure. Anoop Baranwal v. Union of India, 2023 LiveLaw (SC) 155 : (2023) 6 SCC 161 : (2023) 9 SCR 1 : 2023 INSC 190

'Majoritarian forces must be counterbalanced, abuse of electoral process way to grave of democracy ': top quotes from Supreme Court's ECI verdict. Anoop Baranwal v. Union of India, 2023 LiveLaw (SC) 155 : (2023) 6 SCC 161 : (2023) 9 SCR 1 : 2023 INSC 190

ECI Case | Right to vote is a part of fundamental rights, says Justice Rastogi; majority judgment opines it's a constitutional right. Anoop Baranwal v. Union of India, 2023 LiveLaw (SC) 155 : (2023) 6 SCC 161 : (2023) 9 SCR 1 : 2023 INSC 190

Municipal Corporation of Delhi mayor polls: Nominated members can't vote, holds Supreme Court; Election to be notified in 24 hours. Shelly Oberoi v. Office of Lieutenant Governor of Delhi, 2023 LiveLaw (SC) 119 : (2023) 5 SCC 414 : 2023 INSC 132

'For Parliament to decide whether to allow candidates to contest from two seats': Supreme Court dismisses challenge to Sec 33(7) RP Act. Ashwini Kumar Upadhyay v. Union of India, 2023 LiveLaw (SC) 84 : AIR 2023 SC 891 : (2023) 5 SCC 668

Electricity

'Governor cannot stultify a government like this": Supreme Court rebukes Delhi LG for delaying appointment of DERC chairperson. Govt of NCT of Delhi v. Office of LG of NCT of Delhi, 2023 LiveLaw (SC) 476

Electricity dues of previous occupier can be recovered from subsequent occupier of premises. K.C. Ninan v. Kerala State Electricity Board, 2023 LiveLaw (SC) 453 : 2023 INSC 560

CERC can't go beyond express terms of contract; APTEL can't discover new "change in law" which parties never contemplated. Haryana Power Purchase Centre v. Sasan Power Ltd; 2023 LiveLaw (SC) 409 : 2023 INSC 326

Contract Process - The Supreme Court has reiterated the requirement of a specific show-cause notice before imposing penalty. Noting that the show-cause notice issued by the Madhya Pradesh Power Distribution Company (M.P. DISCOM) was only about debarment, the court remarked that the action of imposing penalty without even putting the tenderee/ appellant to notice with respect to the same, cannot be approved. Isolators and Isolators v. Madhya Pradesh Madhya Kshetra Vidyut Vitran Co. Ltd., 2023 LiveLaw (SC) 330 : AIR 2023 SC 2058 : 2023 INSC 390

DISCOMS to pay 'change in law' compensation for all additional charges levied by state instrumentalities to power generating companies. GMR Warora Energy Ltd. v. Central Electricity Regulatory Commission (CERC), 2023 LiveLaw (SC) 329 : 2023 INSC 398

Appellate Electricity Tribunal cannot casually render findings of coercion without proper pleading, proof or probe. Gujarat Urja Vikas Nigam v. Renew Wind Energy (Rajkot) Pvt. Ltd., 2023 LiveLaw (SC) 315 : 2023 INSC 366

Diversion of gas to other generating stations is not sufficient ground to seek compensation when PPA has no such provision. Penna Electricity Ltd. (Now Pioneer Power Ltd.) v. Tamil Nadu Electricity Board, 2023 LiveLaw (SC) 221 : 2023 INSC 235

Supreme Court upholds 'Change in Law' compensation for Adani Power; Flays State DISCOMs for taking a stand contrary to Union Govt. Maharashtra State Electricity Distribution Company Ltd. v. Adani Power Maharashtra Ltd., 2023 LiveLaw (SC) 166 : AIR 2023 SC 1495 : (2023) 7 SCC 401 : 2023 INSC 208

Electricity Act, 2003

Electricity Act 2003; Section 84 (2) - Appointment of the Chairperson - The substantive part of sub-section (2) indicates that the State Government may appoint any person as the Chairperson from “amongst persons who is, or has been, a Judge of a High Court”. However, in terms of the proviso, an appointment under the subsection has to be made only after consultation with the Chief Justice “of that High Court”. The expression “of that High Court” makes it abundantly clear that the consultation has to be made with the Chief Justice of the High Court from which the Judge or, as the case may be, the former Judge is drawn. Govt of NCT of Delhi v. Office of LG of NCT of Delhi, 2023 LiveLaw (SC) 476

Electricity Act, 2003 - In the exercise of the jurisdiction under Article 142 of the Constitution, the Electric Utilities have been directed in the facts of cases before us to waive the outstanding interest accrued on the principal dues from the date of application for supply of electricity by the auction purchasers. K.C. Ninan v. Kerala State Electricity Board, 2023 LiveLaw (SC) 453 : 2023 INSC 560

Electricity Act, 2003 - The implication of the expression “as is where is” basis is that every intending bidder is put on notice that the seller does not undertake responsibility in respect of the property offered for sale with regard to any liability for the payment of dues, like service charges, electricity dues for power connection, and taxes of the local authorities. K.C. Ninan v. Kerala State Electricity Board, 2023 LiveLaw (SC) 453 : 2023 INSC 560

Electricity Act, 2003; Section 178 - In a case where the matter is governed by express terms of the contract, the Central Electricity Regulatory Commission cannot, even donning the garb of a regulatory body, go beyond the express terms of the contract. A regulation made under Section 178 of the Act has the effect of interfering and overriding the existing contractual relationship between the regulated entities. However, while it may be open for a regulation to extricate a party from its contractual obligations, the Commission cannot in the course of its adjudicatory power, use the nomenclature regulation to usurp this power to disregard the terms of the contract. The Appellate Tribunal for Electricity cannot discover a new 'change in law' which the parties have not contemplated as change in law, and the Tribunal cannot rewrite the contract and create a new bargain between the parties. Haryana Power Purchase Centre v. Sasan Power Ltd; 2023 LiveLaw (SC) 409 : 2023 INSC 326

Electricity Act, 2003; Section 43 - For an application to be considered as a 'reconnection', the applicant has to seek supply of electricity with respect to the same premises for which electricity was already provided. Even if the consumer is the same, but the premises are different, it will be considered as a fresh connection and not a reconnection. K.C. Ninan v. Kerala State Electricity Board, 2023 LiveLaw (SC) 453 : 2023 INSC 560

Electricity Act, 2003; Section 43 - The duty to supply electricity under Section 43 of the 2003 Act is not absolute, and is subject to the such charges and compliances stipulated by the Electric Utilities as part of the application for supply of electricity. K.C. Ninan v. Kerala State Electricity Board, 2023 LiveLaw (SC) 453 : 2023 INSC 560

Electricity Act, 2003; Section 43 - The duty to supply electricity under Section 43 is with respect to the owner or occupier of the premises. The 2003 Act contemplates a synergy between the consumer and premises. Under Section 43, when electricity is supplied, the owner or occupier becomes a consumer only with respect to those particular premises for which electricity is sought and provided by the Electric Utilities. K.C. Ninan v. Kerala State Electricity Board, 2023 LiveLaw (SC) 453 : 2023 INSC 560

Electricity Act, 2003; Section 49 - A condition of supply enacted under Section 49 of the 1948 Act requiring the new owner of the premises to clear the electricity arrears of the previous owner as a precondition to availing electricity supply will have a statutory character. K.C. Ninan v. Kerala State Electricity Board, 2023 LiveLaw (SC) 453 : 2023 INSC 560

Electricity Act, 2003; Section 50 - The Electricity Supply Code providing for recoupment of electricity dues of a previous consumer from a new owner have a reasonable nexus with the objects of the 2003 Act. K.C. Ninan v. Kerala State Electricity Board, 2023 LiveLaw (SC) 453 : 2023 INSC 560

Electricity Act, 2003; Section 50 - The scope of the regulatory powers of the State Commission under Section 50 of the 2003 Act is wide enough to stipulate conditions for recovery of electricity arrears of previous owners from new or subsequent owners. K.C. Ninan v. Kerala State Electricity Board, 2023 LiveLaw (SC) 453 : 2023 INSC 560

Electricity Act, 2003; Section 56 - The power to initiate recovery proceedings by filing a suit against the defaulting consumer is independent of the power to disconnect electrical supply as a means of recovery under Section 56 of the 2003 Act. K.C. Ninan v. Kerala State Electricity Board, 2023 LiveLaw (SC) 453 : 2023 INSC 560

Electricity Act, 2003; Sections 50 and 181 - The rule making power contained under Section 181 read with Section 50 of the 2003 Act is wide enough to enable the regulatory commission to provide for a statutory charge in the absence of a provision in the plenary statute providing for creation of such a charge. K.C. Ninan v. Kerala State Electricity Board, 2023 LiveLaw (SC) 453 : 2023 INSC 560

Electricity Act, 2003 – Appeal under Section 125 – Plea of Fraud, Coercion, Duress, or Undue Influence – Party that sets up plea of fraud, coercion, duress, or undue influence must prima facie establish it by laying out material facts – Appellate Tribunal for Electricity (APTEL) not to render findings on coercion without proper and specific pleadings, adequate evidence, or without conducting a probe, in a casual or cavalier way – Held, concurrent findings of APTEL and state commission unsustainable owing to the absence of evidence of coercion and particularity of pleadings beyond a bare allegation – Appeal allowed. Gujarat Urja Vikas Nigam v. Renew Wind Energy (Rajkot) Pvt. Ltd., 2023 LiveLaw (SC) 315 : 2023 INSC 366

Electricity Act, 2003 - Supreme Court has lamented the practice of Distribution Companies (DISCOMS) and power generating companies pursuing endless litigation challenging the concurrent findings arrived at by the Central Electricity Regulatory Commission (CERC) and the Appellate Tribunal for Electricity (APTEL). The Court has asked the Union of India through the Ministry of Power (MoP), to evolve a mechanism so as to ensure timely payment by DISCOMS to the power generating companies under the Power Purchase Agreements (PPAs). All additional charges which are payable on account of orders, directions, Notifications, Regulations, etc., issued by the instrumentalities of the State, after the cut-off date specified in the PPAs, will have to be considered to be 'Change in Law' events for payment of compensation under the PPAs. GMR Warora Energy Ltd. v. Central Electricity Regulatory Commission (CERC), 2023 LiveLaw (SC) 329 : 2023 INSC 398

Electricity Act, 2003 - Compensation for "Change in Law" clause in PPA - SC dismisses petition filed by Maharashtra State Electricity Distribution Company Limited challenging the 'Change in Law' compensation granted by the Appellate Tribunal for Electricity to Adani Power Maharashtra Limited and GMR Warora Energy Limited-we find that the stand taken by the DISCOMS that, since the loss being sustained by the generating companies is on account of non-fulfillment of obligation by CIL/Coal Companies, they should be relegated to the remedy available to them in law against the CIL/Coal Companies, is totally unreasonable. The claim is based on change of NCDP 2007 by NCDP 2013, which, undisputedly, is covered by the term 'Change in Law. (Para 151) Maharashtra State Electricity Distribution Company Ltd. v. Adani Power Maharashtra Ltd., 2023 LiveLaw (SC) 166 : AIR 2023 SC 1495 : (2023) 7 SCC 401 : 2023 INSC 208

Electricity Act, 2003 - Diversion of gas to other generating stations not sufficient ground to seek compensation when Power Purchase Agreement (PPA) has no such provision. Penna Electricity Ltd. (Now Pioneer Power Ltd.) v. Tamil Nadu Electricity Board, 2023 LiveLaw (SC) 221 : 2023 INSC 235

Electricity Act, 2003 - The Court took note of the fact that the DISCOMS (Distribution Companies) which are instrumentalities of the State had taken contrary view to that of the Union Government, which contemplates that the generators would be entitled to pass-through for the coal required to be imported or purchased from the open market on the ground of Change in Law. Referring to Central Warehousing Corporation v. Adani Ports Special Economic Zone Limited (APSEZL) And Ors. (2022), the Court observed that the Apex Court had deprecated the practice of different instrumentalities of the State taking contradictory / different positions / stands on the same issue - We have come across a number of matters wherein concurrent orders passed by the Regulatory Body and the Appellate Forum are assailed. Such a litigation would, in fact, efface the purpose of the Electricity Act. As already discussed herein above, one of the major reasons for the enactment of the Electricity Act was the deterioration in performance of the State Electricity Boards. (Para 150) Maharashtra State Electricity Distribution Company Ltd. v. Adani Power Maharashtra Ltd., 2023 LiveLaw (SC) 166 : AIR 2023 SC 1495 : (2023) 7 SCC 401 : 2023 INSC 208

Employees' State Insurance Act, 1948

Employees' State Insurance Act, 1948 - ESI Act should be given liberal interpretation and should be interpreted in such a manner so that social security can be given to the employees. (Para 6, 6.1) ESI Corporation v. Radhika Theatre, 2022 LiveLaw (SC) 53 : AIR 2023 SC 673 : (2023) 1 SCR 1045 : 2023 INSC 60

Employees' State Insurance Act, 1948; Section 1 (6) - Prior to insertion of Sub-section (6) of Section 1 of the ESI Act, only those establishments/factories engaging more than 20 employees were governed by the ESI Act. However, thereafter, Sub-section (6) of Section 1 of the ESI Act has been inserted on 20.10.1989, and after 20.10.1989 there is a radical change and under the amended provision a factory or establishment to which ESI Act applies would be governed by the ESI Act notwithstanding that the number of persons employed therein at any time falls below the limit specified by or under the ESI Act. Therefore, on and after 20.10.1989, irrespective of number of persons employed a factory or an establishment shall be governed by the ESI Act. (Para 7) ESI Corporation v. Radhika Theatre, 2022 LiveLaw (SC) 53 : AIR 2023 SC 673 : (2023) 1 SCR 1045 : 2023 INSC 60

Employees' State Insurance Act, 1948; Section 1 (6) - Sub-section (6) of Section 1 shall be applicable even with respect to those establishments, established prior to 31.03.1989/20.10.1989 and the ESI Act shall be applicable irrespective of the number of persons employed or notwithstanding that the number of persons employed at any time falls below the limit specified by or under the ESI Act - Only in case of demand notice for the period prior to inserting Sub-section (6) of Section 1 of the Act, it can be said that the same provision has been applied retrospectively. (Para 7) ESI Corporation v. Radhika Theatre, 2022 LiveLaw (SC) 53 : AIR 2023 SC 673 : (2023) 1 SCR 1045 : 2023 INSC 60

Employees' State Insurance Act, 1948; Sections 53, 61 - Motor Vehicle Act, 1988; Section 163A, 167 - Can an employee insured under the Employees' State Insurance Act, 1948, claim compensation under the Motor Vehicles Act - Whether the insurance amount paid under the ESI Act is a “similar benefit” as the compensation which is claimed in a case where there is a Motor Vehicle accident and claim subsists so as to bar the same - Referred to larger bench. Rajkumar Agrawal v. Vehicle Tata Venture, 2023 LiveLaw (SC) 62

Environment Protection Act, 1986

Environment Protection Act, 1986 - Supreme Court upholds the directions of NGT Chennai that all petroleum outlets in cities having population of more than 10 lakh and having turnover of more than 300 KL/Month shall install the Vapour Recovery System (VRS) mechanism- SC however sets aside NGT directions that new petroleum outlets should mandatorily obtain Consent to Establish and existing outlets should have Consent to Operate. Indian Oil Corporation Ltd. v. VBR Menon, 2023 LiveLaw (SC) 185 : AIR 2023 SC 1573 : (2023) 7 SCC 368 : 2023 INSC 231

Environment (Protection) Rules, 1986

Environment (Protection) Rules, 1986 – Rule 5 - The area to be declared as ESZ cannot be uniform and will be Protected Area specific. In some cases, it may be 10 kilometres on one side and 500 meters on the other side. In certain cases, it may not be possible to have a uniform minimum area by virtue of inter-state boundaries or a sea or a river beyond one side of the Protected Area. In any case, a detailed procedure is required to be followed as prescribed under Rule 5 of the 1986 Rules. Once such a notification is issued after following the procedure prescribed under the 1986 Rules, the ESZs will have to be as per the said notification. In Re: T.N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 351 : 2023 INSC 430

Environment

No mining activity within Eco-Sensitive Zone (ESZ) even if ESZ is more than 1 km from protected forest. In Re: T. N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 392 : 2023 INSC 442

Metro Rail - Supreme Court refused to interfere with the construction work on phase-IV of Delhi Metro, stating that any interference at this stage would also result in a huge escalation of its cost, causing a loss to the public exchequer. In re : Delhi Metro Rail Corporation (DMRC), 2023 LiveLaw (SC) 363

No doubt that the concern for the environment is an important aspect. However, at the same time, developmental works like the metro rail, which will cater to millions of people and also reduce carbon emissions, inasmuch as the number of vehicles on the road would be reduced, cannot be ignored. In re : Delhi Metro Rail Corporation (DMRC), 2023 LiveLaw (SC) 363

The Supreme Court has expressed concerns at the unregulated number of devotees visiting places of worship which are situated in national parks and sanctuaries. In re: T.N. Godavarman v. Union of India, 2023 LiveLaw (SC) 362

Eco-Sensitive Zone (ESZ) - the requirement of declaring ESZs is not to hamper day to day activities of the citizens but is meant to protect the precious forests/Protected Areas from any negative impact, and to refine the environment around the Protected Areas. In Re: T. N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 351 : 2023 INSC 430

The Supreme Court modified its order dated June 3, 2022 to the extent that directions in the said order mandating a 1 km Eco-Sensitive Zone (ESZ) around protected forests would not be applicable to the ESZs in respect of which a draft and final notification has been issued by the Ministry of Environment, Forest and Climate Change (MoEF & CC) and in respect of the proposals which have been received by the Ministry. In Re: T. N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 351 : 2023 INSC 430

Eco-Sensitive Zone (ESZ) - If the direction as issued by this Court in paragraph 56.5 of the order dated 3rd June 2022 is continued, then no permanent structure would be permitted to come up for whatsoever purpose in the aforesaid ESZs. Hundreds of villages are situated within the ESZs in the country. If no permanent construction is to be permitted for any purpose, a villager who is desirous to reconstruct his house would not be permitted. Similarly, if the Government decides to construct schools, dispensaries, anganwadis, village stores, water tanks and other basic structures for improvement of the life of the villagers, the same would also not be permitted. The effect of the order will be to prevent the State or the Central Government from constructing roads and provide other facilities to the villagers. In Re: T. N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 351 : 2023 INSC 430

Eco-Sensitive Zone (ESZ) - If the direction as contained in paragraph 56.5 of the order dated June 3, 2022 that even for continuation of existing activities, the permission of the Principal Chief Conservator of Forests (PCCF) of each State or Union Territory would be necessary, remains unmodified, taking into consideration that in each State or Union Territory there will be hundreds of villages wherein millions of people would be residing, the PCCF would be left with no other job except to consider such applications for permission to continue such activities. Even a farmer desirous to continue farming activities would be required to seek such permission. We find that such a direction is impossible to be implemented. If such a direction is continued, rather than avoiding man-animal conflict, it will intensify the same. In Re: T. N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 351 : 2023 INSC 430

Eco-Sensitive Zone (ESZ) - The Court modified the directions contained in paragraph 56.5 of the order dated June 3, 2022 as follows: 1. The MoEF & CC and all the State/Union Territory Governments shall strictly follow the provisions in the said Guidelines dated 9th February 2011 and so also the provisions contained in the ESZs notifications pertaining to the respective Protected Areas with regard to prohibited activities, regulated activities and permissible activities. 2. We further direct that while granting Environmental and Forest Clearances for project activities in ESZ and other areas outside the Protected Areas, the Union of India as well as various State/Union Territory Governments shall strictly follow the provisions contained in the Office Memorandum dated 17th May 2022 issued by MoEF & CC. In Re: T. N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 351 : 2023 INSC 430

Mining within the National Park and Wildlife Sanctuary and within an area of one kilometre from the boundary of such National Park and Wildlife Sanctuary shall not be permissible. In Re: T. N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 351 : 2023 INSC 430

Aarey Case - The Supreme Court imposes Rs. 10 lakh fine on Mumbai Metro Rail Corporation Ltd (MMRCL) for seeking to cut more trees than allowed; but allows it to cut 177 trees. In Re: Felling of Trees in Aarey Forest (Maharashtra), 2023 LiveLaw (SC) 334 : 2023 INSC 381

'NGT could not have ignored decree affirmed by Supreme Court': SC allows housing society's appeal. Shramjeevi Cooperative Housing Society Ltd. v. Dinesh Johi, 2023 LiveLaw (SC) 258 : AIR 2023 SC 1558 : 2023 INSC 275

Appeal maintainable before NGT against corrigendum imposing additional conditions to environmental clearance. IL&FS Tamil Nadu Power Company Ltd. v. T. Muruganandam, 2023 LiveLaw (SC) 192 : (2023) 6 SCC 585 : 2023 INSC 136

Environmental Clearance - Supreme Court permits IL&FS Tamil Nadu Power Company Limited to continue operating its power plants in Tamil Nadu. IL&FS Tamil Nadu Power Company Ltd. v. T. Muruganandam, 2023 LiveLaw (SC) 192 : (2023) 6 SCC 585 : 2023 INSC 136

The Supreme Court issues directions for installation of vapour recovery system in retail petroleum outlets. Indian Oil Corporation Ltd. v. VBR Menon, 2023 LiveLaw (SC) 185 : AIR 2023 SC 1573 : (2023) 7 SCC 368 : 2023 INSC 231

NGT has powers to execute its orders as decrees of Civil Court. Sushil Raghav v. Union of India, 2023 LiveLaw (SC) 140

The Supreme Court disapproves of building zoos inside tiger reserves; stops constructions within core areas of national parks, wildlife sanctuaries. In Re: T.N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 104

Environment Protection - Supreme Court disapproves of constructing zoos and enclosures within national parks - Prima facie, we do not appreciate the necessity of having a zoo inside the tiger reserves or national parks. The concept of protecting these is to permit animals to reside in their natural environs and not artificial environs. We, therefore, also call upon the National Tiger Conservation Authority (NTCA) to explain the rationale behind permitting such safaris within tiger reserves and national parks. Until further orders, the authorities are restrained from making any constructions within the core areas of national parks, wildlife sanctuaries, and tiger reserves. In Re: T.N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 104

Human life is equally important as protection of the environment; Projects necessary for country's economic development can't be stalled. Association for Protection of Democratic Rights v. State of West Bengal, 2023 LiveLaw (SC) 102

The contest between development and environmental concerns is ever ongoing. While there is no doubt that ecology and environment need to be protected for the future generations, at the same time, development projects cannot be stalled, which are necessary not only for the economic development of the country, but at times for the safety of the citizens as well. No doubt that the protection of environment and ecology are important. However, at the same time, it cannot be denied that human life is also equally important. Association for Protection of Democratic Rights v. State of West Bengal, 2023 LiveLaw (SC) 102

Taj Trapezium matter: Supreme Court allows more flights to agra, removes restriction on increasing air traffic. M.C. Mehta v. Union of India, 2023 LiveLaw (SC) 82

Make environmental impact assessment mandatory for urban development, recommends supreme court; cites condition of bengaluru as warning. Residents Welfare Association v. Union Territory of Chandigarh, 2023 LiveLaw (SC) 24 : AIR 2023 SC 570 : AIR 2023 SC 570 : (2023) 8 SCC 643 : 2023 INSC 22

The Supreme Court prohibits conversion of residential units into floor-wise apartments in Chandigarh phase 1 to protect 'corbusier' heritage. Residents Welfare Association v. Union Territory of Chandigarh, 2023 LiveLaw (SC) 24 : AIR 2023 SC 570 : AIR 2023 SC 570 : AIR 2023 SC 570 : (2023) 8 SCC 643 : 2023 INSC 22

Chandigarh Master Plan - Supreme Court prohibits conversion of independent residential units as apartments in Chandigarh Phase 1 to preserve the heritage status of 'Corbusier' City-Any fragmentation, division, bifurcation, and apartmentalisation of a residential unit in Phase I of Chandigarh is prohibited. Residents Welfare Association v. Union Territory of Chandigarh, 2023 LiveLaw (SC) 24 : AIR 2023 SC 570 : AIR 2023 SC 570 : AIR 2023 SC 570 : (2023) 8 SCC 643 : 2023 INSC 22

Environmental Impact Assessment - Supreme Court recommends making environmental assessment mandatory for urban development- We therefore appeal to the Legislature, the Executive and the Policy Makers at the Centre as well as at the State levels to make necessary provisions for carrying out Environmental Impact Assessment studies before permitting urban development. Residents Welfare Association v. Union Territory of Chandigarh, 2023 LiveLaw (SC) 24 : AIR 2023 SC 570 : AIR 2023 SC 570 : AIR 2023 SC 570 : (2023) 8 SCC 643 : 2023 INSC 22

E-Filing

Ensure e-filing of all revenue appeals before HCs and Tribunals: Supreme Court directs centre. CCE and ST, Surat I v. Bilfinder Neo Structo Construction Ltd., 2023 LiveLaw (SC) 106

Equity

Equity will follow the law and it would tilt in favour of law and further that to claim equity the party must explain previous conduct. (Para 14) Baini Prasad v. Durga Devi, 2023 LiveLaw (SC) 78 : AIR 2023 SC 894 : 2023 INSC 95

Essential Commodities Act, 1955

Essential Commodities Act, 1955; Section 7 - Person convicted for unauthorized possession of LPG cylinders acquitted - SI who took action was found to be not an authorized officer who could take action under the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order - In the absence of the authority and power with the Sub-Inspector to take action as per the Order, the proceedings initiated by him will be totally unauthorised and have to be struck down - Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods are necessarily forbidden. Avtar Singh v. State of Punjab, 2023 LiveLaw (SC) 272 : AIR 2023 SC 1588 : 2023 INSC 280

Estoppel and Acquiescence

In the case of acquiescence the representations are to be inferred from silence, but mere silence, mere inaction could not be construed to be a representation and in order to be a representation it must be inaction or silence in circumstances which require a duty to speak and therefore, amounting to fraud or deception - In the absence of any misrepresentation by an act or omission, the mere fact after making objection the plaintiff took some reasonable time to approach the Court for recovery of possession cannot, at any stretch of imagination, be a reason to deny him the relief him of recovery of possession of the encroached land on his establishing his title over it. (Para 18-21) Baini Prasad v. Durga Devi, 2023 LiveLaw (SC) 78 : AIR 2023 SC 894 : 2023 INSC 95

Evidence Law

Admission

Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. (Para 39) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279 : AIR 2023 SC 1736 : 2023 INSC 314

Chance Witness

Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded. Ravi Mandal v. State of Uttarakhand, 2023 LiveLaw (SC) 470 : AIR 2023 SC 2554 : 2023 INSC 552

Close Relative

Testimony of a close relative - A witness being a close relative is not a ground enough to reject his testimony. Mechanical rejection of an even “partisan” or “interested” witness may lead to failure of justice. The principle of “falsus in uno, falsus in omnibus” is not one of general application. (Para 17.4) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225 : (2023) 5 SCC 391 : (2023) 2 SCR 965 : 2023 INSC 238

Circumstantial Evidence

In a criminal trial, the prosecution has to prove its case beyond reasonable doubt. This heavy burden has to be discharged by the prosecution. It becomes even more difficult in a case of circumstantial evidence. In the present case, the nature of circumstantial evidence is weak. In order to establish a charge of guilt on the accused, the chain of evidence must be completed and the chain must point out to one and only one conclusion, which is that it is only the accused who have committed the crime and none else. We are afraid the prosecution has not been able to discharge this burden. (Para 15) Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395 : AIR 2023 SC 2795 : 2023 INSC 493

In a case where there is no direct eye witness to the crime, the prosecution has to build its case on the circumstantial evidence. It is a very heavy burden cast on the prosecution. The chain of circumstances collected by the prosecution must complete the chain, which should point to only one conclusion which is that it is the accused who had committed the crime, and none else. Each evidence which completes the chain of evidences must stand on firm grounds. In our considered opinion, the evidence placed by the prosecution in this case does not pass muster the standard required in a case of circumstantial evidence. (Para 15) Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395 : AIR 2023 SC 2795 : 2023 INSC 493

Failure to render plausible explanation - In a case based on circumstantial evidence, false explanation or non-explanation can only be used as an additional circumstance when the prosecution has proved the chain of circumstances leading to a definite conclusion with regard to the guilt of the accused. (Para 83) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418 : 2023 INSC 443

In cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted. Pradeep Kumar v. State of Chhattisgarh, 2023 LiveLaw (SC) 239 : (2023) 2 SCR 682 : (2023) 5 SCC 350 : 2023 INSC 242

Law relating to Circumstantial Evidence– Discussed. (Para 5 - 11) Shankar v. State of Maharashtra, 2023 LiveLaw (SC) 212 : (2023) 2 SCR 661 : 2023 INSC 234

The law with regard to conviction in the case of circumstance evidence – Explained. (Para 8 to 10) Nikhil Chandra Mondal v. State of West Bengal, 2023 LiveLaw (SC) 171 : AIR 2023 SC 1323 : AIR 2023 SC 1323 : (2023) 2 SCR 20 : 2023 INSC 198

Every link in the chain of circumstances necessary to establish the guilt of the accused must be established beyond reasonable doubt - All the circumstances must be consistently pointing towards the guilt of the accused. (Para 10) Indrajit Das v. State of Tripura, 2023 LiveLaw (SC) 152 : AIR 2023 SC 1239 : 2023 INSC 175

In a case of circumstantial evidence, motive has an important role to play. It is an important link in the chain of circumstances - The basic links in the chain of circumstances starts with motive, then move on to last seen theory, recovery, medical evidence, expert opinions if any and any other additional link which may be part of the chain of circumstances. (Para 12, 15) Indrajit Das v. State of Tripura, 2023 LiveLaw (SC) 152 : AIR 2023 SC 1239 : 2023 INSC 175

Golden principles with regard to conviction in a case which rests entirely on circumstantial evidence - It is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established - The accused 'must be' and not merely 'may be' guilty before a court can convict the accused - There is not only a grammatical but a legal distinction between 'may be proved' and “must be or should be proved" - The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty - The circumstances should be such that they exclude every possible hypothesis except the one to be proved - There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused. (Para 9-10) Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : (2023) 1 SCR 335 : 2023 INSC 23

The prosecution is obliged to prove each circumstance, beyond reasonable doubt, as well the as the links between all circumstances; such circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else; further, the facts so proved should unerringly point towards the guilt of the accused. The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence - These panchsheel precepts, so to say, are now fundamental rules, iterated time and again, and require adherence not only for their precedential weight, but as the only safe bases upon which conviction in circumstantial evidence cases can soundly rest. (Para 21) Jabir v. State of Uttarakhand, 2023 LiveLaw (SC) 41 : AIR 2023 SC 488 : (2023) 1 SCR 969 : 2023 INSC 48

Cross-examination

During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same. (Para 44) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279 : AIR 2023 SC 1736 : 2023 INSC 314

The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused. (Para 43) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279 : AIR 2023 SC 1736 : 2023 INSC 314

Delayed Disclosure

A mere chance witness, whose presence at the spot, at that hour, is not satisfactorily explained therefore, bearing in mind that he kept silent for unusually long i.e. for more than three and a half months, his testimony is not worthy of any credit. The courts below erred by placing reliance on his testimony. Ravi Mandal v. State of Uttarakhand, 2023 LiveLaw (SC) 470 : AIR 2023 SC 2554 : 2023 INSC 552

Testimony of witnesses who made a delayed disclosure of the incriminating circumstances of which he was aware much earlier - If a witness professes to know about a gravely incriminating circumstance against a person accused of the offence of murder and the witness keeps silent for over two months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstance, in the absence of any cogent reason, is bound to lose most of its value. Ravi Mandal v. State of Uttarakhand, 2023 LiveLaw (SC) 470 : AIR 2023 SC 2554 : 2023 INSC 552

Effect of omissions, deficiencies

Evidence examined as a whole, must reflect/ring of truth. The court must not give undue importance to omissions and discrepancies which do not shake the foundations of the prosecution's case. (Para 17.2) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225 : (2023) 5 SCC 391 : (2023) 2 SCR 965 : 2023 INSC 238

Expert Opinion

Admissibility of the FSL Report - Handwriting Expert Opinion - though it is not impermissible to base a finding with regard to authorship of a document solely on the opinion of a handwriting expert but, as a rule of prudence, because of imperfect nature of the science of identification of handwriting and its accepted fallibility, such opinion has to be relied with caution and may be accepted if, on its own assessment, the Court is satisfied that the internal and external evidence relating to the document in question supports the opinion of the expert and it is safe to accept his opinion. (Para 65) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418 : 2023 INSC 443

Handwriting Expert Opinion - Suicide Letter - Taking into account that the accused has denied the incriminating circumstance of writing the suicide letter and no internal or external evidence, save the expert report, supports the writing of suicide letter by the accused, though the expert evidence was admissible as an opinion on the writing in the suicide letter but, on overall assessment of the evidence led by the prosecution, solely on its basis, it would be extremely unsafe to hold that the suicide letter retrieved from the trouser of the deceased was written by the accused. (Para 69) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418 : 2023 INSC 443

Extra-judicial confession

Evidentiary value of extra-judicial confession also depends on the person to whom it is made. Pawan Kumar Chourasia v. State of Bihar, 2023 LiveLaw (SC) 197 : AIR 2023 SC 1464 : (2023) 2 SCR 875 : 2023 INSC 227

Generally, it is a weak piece of evidence. However, a conviction can be sustained on the basis of extra-judicial confession provided that the confession is proved to be voluntary and truthful. It should be free of any inducement. The evidentiary value of such confession also depends on the person to whom it is made. Going by the natural course of human conduct, normally, a person would confide about a crime committed by him only with such a person in whom he has implicit faith. (Para 5) Pawan Kumar Chourasia v. State of Bihar, 2023 LiveLaw (SC) 197 : AIR 2023 SC 1464 : (2023) 2 SCR 875 : 2023 INSC 227

Normally, a person would not make a confession to someone who is totally a stranger to him. Moreover, the Court has to be satisfied with the reliability of the confession keeping in view the circumstances in which it is made. As a matter of rule, corroboration is not required. However, if an extra-judicial confession is corroborated by other evidence on record, it acquires more credibility. (Para 5) Pawan Kumar Chourasia v. State of Bihar, 2023 LiveLaw (SC) 197 : AIR 2023 SC 1464 : (2023) 2 SCR 875 : 2023 INSC 227

Extra-Judicial confession is a weak piece of evidence, independent corroboration needed. Nikhil Chandra Mondal v. State of West Bengal, 2023 LiveLaw (SC) 171 : AIR 2023 SC 1323 : AIR 2023 SC 1323 : (2023) 2 SCR 20 : 2023 INSC 198

It is a settled principle of law that extra-judicial confession is a weak piece of evidence. It has been held that where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It has further been held that it is well-settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession. It has been held that there is no doubt that conviction can be based on extra-judicial confession, but in the very nature of things, it is a weak piece of evidence. (Para 15) Nikhil Chandra Mondal v. State of West Bengal, 2023 LiveLaw (SC) 171 : AIR 2023 SC 1323 : AIR 2023 SC 1323 : (2023) 2 SCR 20 : 2023 INSC 198

The extra-judicial confession is a weak piece of evidence and especially when it has been retracted during trial. It requires strong evidence to corroborate it and also it must be established that it was completely voluntary and truthful. (Para 21) Indrajit Das v. State of Tripura, 2023 LiveLaw (SC) 152 : AIR 2023 SC 1239 : 2023 INSC 175

Eyewitness

In the case of a sole eye witness, the witness has to be reliable, trustworthy, his testimony worthy of credence and the case proven beyond reasonable doubt. Unnatural conduct and unexplained circumstances can be a ground for disbelieving the witness. (Para 8) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227 : (2023) 2 SCR 746 : 2023 INSC 241

'It's quality & not quantity of witnesses which matters': Supreme Court relies on solitary eyewitness testimony to affirm sentence. Ajai @ Ajju v. State of Uttar Pradesh, 2023 LiveLaw (SC) 110 : AIR 2023 SC 996 : 2023 INSC 127

Forensic / Ballistic Report

Forensic / Ballistic Report has not even been put to the accused, from whom the country made pistol was seized, while recording his statement under section 313 of Cr.P.C., therefore, in any event, it would have to be eschewed from consideration. (Para 32) Ravi Mandal v. State of Uttarakhand, 2023 LiveLaw (SC) 470 : AIR 2023 SC 2554 : 2023 INSC 552

Guilty Mind

Accused were not traceable - Once the body was found and police entered the scene, after the first information report, even if the accused had been away and innocent, his instinct of self-preservation would have got the better of him to evade arrest till better counsel prevailed upon him to surrender. Such conduct by itself is not reflective of a guilty mind. (Para 70) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418 : 2023 INSC 443

Hostile Witness

a) Corroborated part of the evidence of a hostile witness regarding the commission of offence is admissible. Merely because there is deviation from the statement in the FIR, the witness's statements cannot be termed totally unreliable; b) the evidence of a hostile witness can form the basis of conviction. c) The general principle of appreciating the evidence of eye-witnesses is that when a case involves a large number of offenders, prudently, it is necessary, but not always, for the Court to seek corroboration from at least two more witnesses as a measure of caution. Be that as it may, the principle is quality over quantity of witnesses. (Para 17.1) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225 : (2023) 5 SCC 391 : (2023) 2 SCR 965 : 2023 INSC 238

Injured Witness

The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (Para 26) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279 : AIR 2023 SC 1736 : 2023 INSC 314

Insanity

Burden of proof on accused to prove plea of insanity is one of preponderance of probability. Prakash Nayi @ Sen v. State of Goa, 2023 LiveLaw (SC) 71 : (2023) 5 SCC 673 : (2023) 1 SCR 823 : 2023 INSC 24

Section 27 Evidence Act - Recovery cannot be relied upon when the statement of the accused is not recorded. Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : (2023) 1 SCR 335: 2023 INSC 23

Last Seen Theory

Once the theory of “last seen together” was established by the prosecution, the accused was expected to offer some explanation as to when and under what circumstances he had parted the company of the deceased-If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence. (Paras 6 to 9) Ram Gopal Mansharam v. State of Madhya Pradesh, 2023 LiveLaw (SC) 120 : AIR 2023 SC 1145 : AIR 2023 SC 1145 : (2023) 5 SCC 534 : (2023) 2 SCR 402 : 2023 INSC 133

Last­ seen theory comes into play where the time­gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. If the gap between the time of last seen and the deceased found dead is long, then the possibility of other person coming in between cannot be ruled out - Solely on the basis of last seen theory, the conviction could not have been recorded. (Para 16, 17, 29) Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : (2023) 1 SCR 335: 2023 INSC 23

'Last seen' circumstance cannot be the sole basis for conviction: Supreme Court acquits murder accused. Jabir v. State of Uttarakhand, 2023 LiveLaw (SC) 41 : AIR 2023 SC 488 : (2023) 1 SCR 969 : 2023 INSC 48

Last Seen Doctrine - The “last seen” doctrine has limited application, where the time lag between the time the deceased was seen last with the accused, and the time of murder, is narrow; furthermore, the court should not convict an accused only on the basis of the “last seen” circumstance. (Para 23) Jabir v. State of Uttarakhand, 2023 LiveLaw (SC) 41 : AIR 2023 SC 488 : (2023) 1 SCR 969 : 2023 INSC 48

Right of Private Defence

If a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the accused is established the same would definitely be admissible in evidence. (Para 45) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279 : AIR 2023 SC 1736 : 2023 INSC 314

Single Witness

Reliance on Single Witness - If a witness is absolutely reliable then conviction based thereupon cannot be said to be infirm in any manner. (Para 17.3) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225 : (2023) 5 SCC 391 : (2023) 2 SCR 965 : 2023 INSC 238

Standard of Proof

Standard of proof in criminal proceedings differs with that in civil proceedings - Adjudication in civil matters is based on preponderance of probabilities whereas adjudication in criminal cases is based on the principle that the accused is presumed to be innocent and the guilt of the accused should be proved to the hilt and the proof should be beyond all reasonable doubt. (Para 29-30) Rajaram Sriramulu Naidu v. Maruthachalam, 2023 LiveLaw (SC) 46 : AIR 2023 SC 471 : (2023) 1 SCR 809 : 2023 INSC 51

Suggestions

Suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused. (Para 42) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279 : AIR 2023 SC 1736 : 2023 INSC 314

The suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client. (Para 38) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279 : AIR 2023 SC 1736 : 2023 INSC 314

Suicide

Mere fact of commission of suicide itself not sufficient to raise presumption under Section 113A Evidence Act. Kashibai v. State of Karnataka, 2023 LiveLaw (SC) 149 : 2023 INSC 722

Suspicion

Suspicion, howsoever great it may be, is no substitute of proof in criminal jurisprudence - Only such evidence is admissible and acceptable as is permissible in accordance with law. (Para 8) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227 : (2023) 2 SCR 746 : 2023 INSC 241

It is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. (Para 11) Nikhil Chandra Mondal v. State of West Bengal, 2023 LiveLaw (SC) 171 : AIR 2023 SC 1323 : AIR 2023 SC 1323 : (2023) 2 SCR 20 : 2023 INSC 198

Test Identification Parade

Test Identification Parade doesn't have much value when the accused is already known to witness. Udayakumar v. State of Tamil Nadu, 2023 LiveLaw (SC) 242 : 2023 INSC 239

Translator

Section 27 Evidence Act statement not liable to be rejected merely because it was recorded in a language not known to the accused through translator. Siju Kurian v. State of Karnataka, 2023 LiveLaw (SC) 338 : AIR 2023 SC 2239 : 2023 INSC 378

Weapon

It is the duty of the prosecution to establish use of the weapon discovered in the commission of the crime. Failure to do so may cause aberration in the course of justice. (Para 15) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227 : (2023) 2 SCR 746 : 2023 INSC 241

Witness

It is not the quantity but the quality of witnesses and evidence that can either make or break the case of the prosecution. It is the duty of the prosecution to prove that the testimonies of the witnesses that it seeks to rely upon are of sterling quality. (Para 10) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227 : (2023) 2 SCR 746 : 2023 INSC 241

It is not the quantity of the witnesses but the quality of witnesses which matters. (Para 21) Ajai @ Ajju v. State of Uttar Pradesh, 2023 LiveLaw (SC) 110 : AIR 2023 SC 996 : 2023 INSC 127

Evidence Act, 1872

Evidence Act, 1872 - Murder trial - Principle of corpus delicti – non-recovery of the corpse would have relevance in considering the links of chain of circumstances. (Para 16) Indrajit Das v. State of Tripura, 2023 LiveLaw (SC) 152 : AIR 2023 SC 1239 : 2023 INSC 175

Section 6 - Relevancy of facts forming part of same transaction

Evidence Act, 1872; Section 6 - Principle of res gestae - Relevancy of facts forming part of same transaction - The rule embodied in Section 6 is usually known as the rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence. (Para 49) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279 : AIR 2023 SC 1736 : 2023 INSC 314

Section 9 - Facts necessary to explain or introduce relevant facts

Evidence Act, 1872; Section 9 - Test Identification Parade - The entire necessity for holding an investigation parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source - Investigation parade does not hold much value when the identity of the accused is already known to the witness. (Para 9) Udayakumar v. State of Tamil Nadu, 2023 LiveLaw (SC) 242 : 2023 INSC 239

Section 27 - How much of information received from accused may be proved

Evidence Act, 1872; Section 27 - As far as the recovery is concerned, the recovery is again weak. The so­called alleged place of crime and the recovery of tractor or the place where the tractor was abandoned had already been disclosed by the co­accused by the time the present appellant was arrested. Therefore, making a disclosure about the place of occurrence or the place where the tractor was abandoned is of no consequence. As far as the recovery of watch, currency notes of Rs. 250/­, hair and 'Parna' from the residence of the accused are concerned, the currency notes and hair have not been identified with the deceased. What we can call as discovery here under Section 27 of the Act, is the discovery of 'Parna' and watch of the deceased. This evidence in itself is not sufficient to fix guilt on the accused. (Para 15) Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395 : AIR 2023 SC 2795 : 2023 INSC 493

Evidence Act, 1872; Section 27 - Disclosure statements, consequential discoveries and their connect with crime - Having doubted the recovery of clothes at the instance of the accused, the circumstance that the clothes carried blood of same group as of the deceased is rendered meaningless because there is no admissible evidence to connect the clothes with the two accused. The disclosure statement made to the police, even if not discarded, was not admissible for proving that the clothes recovered were the one which the accused were wearing at the time of murder. The reason being that only so much of the disclosure would be admissible under Section 27 of the IEA, 1872 as distinctly relates to the fact thereby discovered which, in the instant case, would be the place where the clothes were concealed. (Para 76) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418 : 2023 INSC 443

Evidence Act, 1872 - Section 27 permits the derivative use of custodial statement in the ordinary course of events. There is no automatic presumption that the custodial statements have been extracted through compulsion. A fact discovered is an information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered at the instance of the accused which was not within the knowledge of the police before recording the disclosure statement of the accused. The statement of an accused recorded while being in police custody can be split into its components and can be separated from the admissible portions. Such of those components or portions which were the immediate cause of the discovery would be the legal evidence and the rest can be rejected. (Para 18) Siju Kurian v. State of Karnataka, 2023 LiveLaw (SC) 338 : AIR 2023 SC 2239 : 2023 INSC 378

Evidence Act, 1872; Section 27 – Confessional statement not liable to be rejected merely because it was recorded in a language not known to the accused through translator. Siju Kurian v. State of Karnataka, 2023 LiveLaw (SC) 338 : AIR 2023 SC 2239 : 2023 INSC 378

Evidence Act, 1872; Section 27 - The law expects the IO to draw the discovery panchnama as contemplated under Section 27. (Para 25-26) Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : (2023) 1 SCR 335: 2023 INSC 23

Evidence Act, 1872; Section 27 - There is no statement of accused recorded under Section 27 of the Evidence Act - The prosecution has failed to prove the circumstance that the dead body of the deceased was recovered at the instance of the accused - Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery. (Para 20 -26) Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : (2023) 1 SCR 335: 2023 INSC 23

Evidence Act, 1872; Section 27 - Two essential requirements for the application of Section 27 - (1) the person giving information must be an accused of any offence and (2) he must also be in police custody - The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence. (Para 31-33) Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : (2023) 1 SCR 335 : 2023 INSC 23

Section 69 - Proof where no attesting witness found

Evidence Act, 1872; Section 69 - In the event where attesting witnesses may have died, or cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable. (Para 17) Ashutosh Samanta v. Ranjan Bala Dasi, 2023 LiveLaw (SC) 190 : AIR 2023 SC 1422 : (2023) 2 SCR 237 : 2023 INSC 225

Section 74 - Public documents

Evidence Act, 1872 - Section 74, 76 - Copy of the chargesheet along with the necessary documents cannot be said to be public documents within the definition of Public Documents as per Section 74 of the Evidence Act - As per Section 75 of the Evidence Act all other documents other than the documents mentioned in Section 74 of the Evidence Act are all private documents. Therefore, the chargesheet / documents along with the chargesheet cannot be said to be public documents under Section 74 of the Evidence Act, reliance placed upon Sections 74 & 76 of the Evidence Act is absolutely misplaced. (Para 5) Saurav Das v. Union of India, 2023 LiveLaw (SC) 52 : AIR 2023 SC 615 : 2023 INSC 76

Section 90 - Presumption as to documents thirty years old

Evidence Act, 1872; Section 90 - Wills cannot be proved only on the basis of their age – the presumption under Section 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of wills - Wills have to be proved in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872. (Para 13) Ashutosh Samanta v. Ranjan Bala Dasi, 2023 LiveLaw (SC) 190 : AIR 2023 SC 1422 : (2023) 2 SCR 237 : 2023 INSC 225

Section 101 - Burden of Proof

Evidence Act, 1872; Section 101 and 106 – Burden of proving fact especially within knowledge - Section 106 of the Act is an exception to the rule which is Section 101 of the Act, and it comes into play only in a limited sense where the evidence is of a nature which is especially within the knowledge of that person and then the burden of proving that fact shifts upon him that person. The burden of proof is always with the prosecution. It is the prosecution which has to prove its case beyond a reasonable doubt. Section 106 of the Act does not alter that position. It only places burden for disclosure of a fact on the establishment of certain circumstances. (Para 12) Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395 : AIR 2023 SC 2795 : 2023 INSC 493

Evidence Act, 1872; Section 101 - 102 - Declaration of Title - Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit. Smriti Debbarma v. Prabha Ranjan Debbarma, 2022 LiveLaw (SC) 19 : AIR 2023 SC 379 : (2023) 1 SCR 355 : 2023 INSC 8

Section 106 - Burden of proving fact especially within knowledge

Evidence Act, 1872; Section 106 – Last Seen Theory - What has to be kept in mind is that Section 106 of the Act, only comes into play when the other facts have been established by the prosecution. In this case when the evidence of last seen itself is on a weak footing, considering the long gap of time between last seen by PW­10 and the time of death of the deceased. Section 106 of the Act would not be applicable under the peculiar facts and the circumstances of the case. In the present case the prosecution has not been able to prove its case beyond reasonable doubt. The evidence of last seen, only leads upto a point and no further. It fails to link it further to make a complete chain. All we have here is the evidence of last seen, which as we have seen looses much of its weight under the circumstances of the case, due to the long duration of time between last seen and the possible time of death. (Para 13, 15) Dinesh Kumar v. State of Haryana, 2023 LiveLaw (SC) 395 : AIR 2023 SC 2795 : 2023 INSC 493

Evidence Act, 1872; Section 106 - It is true that the burden to prove the guilt of the accused is always on the prosecution, however in view of Section 106 of the Evidence Act, when any fact is within the knowledge of any person, the burden of proving that fact is upon him. (Para 6) Ram Gopal Mansharam v. State of Madhya Pradesh, 2023 LiveLaw (SC) 120 : AIR 2023 SC 1145 : (2023) 5 SCC 534 : (2023) 2 SCR 402 : 2023 INSC 133

Evidence Act, 1872; Section 106 - It is, of course, the duty of prosecution to lead the primary evidence of proving its case beyond reasonable doubt but, when necessary evidence had indeed been led, the corresponding burden was heavy on the accused in terms of Section 106 of the Evidence Act to explain as to what had happened at the time of incident and as to how the death of the deceased occurred. (Para 16.4.1) Prem Singh v. State of NCT of Delhi, 2023 LiveLaw (SC) 2 : AIR 2023 SC 193 : (2023) 3 SCC 372 : 2023 INSC 3

Evidence Act, 1872; Section 106 - Last seen theory - On its own, last seen theory is considered to be a weak basis for conviction. However, when the same is coupled with other factors such as when the deceased was last seen with the accused, proximity of time to the recovery of the body of deceased etc., the accused is bound to give an explanation under Section 106 of the Evidence Act, 1872. If he does not do so, or furnishes what may be termed as wrong explanation or if a motive is established – pleading securely to the conviction of the accused closing out the possibility of any other hypothesis, then a conviction can be based thereon. (Para 17.7) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225 : (2023) 5 SCC 391 : (2023) 2 SCR 965 : 2023 INSC 238

Section 113A - Presumption as to abetment of suicide by a married woman

Evidence Act, 1872; Section 113A - Penal Code, 1860; Section 306 - Mere fact of commission of suicide by itself would not be sufficient for the court to raise the presumption under Section 113A of the Evidence Act, and to hold the accused guilty of Section 306 IPC. (Para 14) Kashibai v. State of Karnataka, 2023 LiveLaw (SC) 149 : 2023 INSC 722

Section 114 - Court may presume existence of certain facts

Evidence Act, 1872 - Section 114 - If courts find evidence in possession of a party that has not been produced it can assume that production of the same would be unfavourable to the person who withholds it as per illustration (g) of Section 114 of the Evidence Act. However, on the basis of the fact that an evidence that ought to have been adduced was not adduced, the High Court cannot remand the matter - merely because a particular evidence which ought to have been adduced but had not been adduced, the Appellate Court cannot adopt the soft course of remanding the matter. (Para 14) Sirajudheen v. Zeenath, 2023 LiveLaw (SC) 145 : 2023 INSC 173

Section 134 - Number of witnesses

Evidence Act, 1872; Section 134 - Evidence has to be weighed and not counted. In other words, it is the quality of evidence that matters and not the quantity - Even in a case of murder, it is not necessary to insist upon a plurality of witnesses and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a conviction - Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance - Generally speaking, oral testimony may be classified into three categories, viz.: (i) Wholly reliable; (ii) Wholly unreliable; (iii) Neither wholly reliable nor wholly unreliable. The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s). However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence. (Para 28) Munna Lal v. State of Uttar Pradesh, 2023 LiveLaw (SC) 60 : AIR 2023 SC 634 : 2023 Cri LJ 1726 : 2023 INSC 78

Examination

Directions interfering with the examination process by way of calling for answer-sheets, recording a finding on non- evaluation or mandating the process of re-evaluation cannot be issued by courts. Chief General Manager, BSNL v. M.J. Paul, 2023 LiveLaw (SC) 414

Police SI selection - Supreme Court finds fault with HC for not considering candidates' objections to questions. Sachit Kumar Singh v. State of Jharkhand, 2023 LiveLaw (SC) 382 : AIR 2023 SC 2216 : 2023 INSC 455

Objections to Questions in Competitive Examination – Appeals by unsuccessful candidates appearing for limited competitive examination conducted by the Jharkhand Staff Selection Commission for appointment to the post of police subinspector – Jharkhand High Court refused to consider objections raised by petitioners on merits on the ground that they were filed beyond the stipulated period for filing objections – Held, high court erred in refusing to consider the petitioners' objections on merits and took a too technical view – Further held, even if the objections had been raised by the petitioners beyond the prescribed period of submitting them, but before the declaration of results, the high court ought to have considered the objections on their merits –Appeals allowed in part – Appeals remanded to high court to be considered afresh. Sachit Kumar Singh v. State of Jharkhand, 2023 LiveLaw (SC) 382 : AIR 2023 SC 2216 : 2023 INSC 455

EWS Quota

Supreme Court dismisses review petitions filed against judgment upholding EWS Quota. Society for the Rights of Backward Communities v. Janhit Abhiyan, 2023 LiveLaw (SC) 441

F

Family Law

How to decide if a marriage has irretrievably broken down? The Supreme Court indicates factors. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375 : 2023 INSC 468

Parties cannot directly approach the Supreme Court under Article 32 seeking divorce on ground of irretrievable breakdown of marriage. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375 : 2023 INSC 468

Waiting period for mutual consent divorce as per S.13b(2) of Hindu Marriage Act can be waived invoking Article 142. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375 : 2023 INSC 468

'Irretrievable breakdown of marriage' a ground to dissolve marriage invoking Article 142 powers. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375 : 2023 INSC 468

Irretrievable breakdown of marriage a ground of dissolve marriage invoking powers of the Supreme Court under Article 142 of the Constitution of India - This discretionary power is to be exercised to do 'complete justice' to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. (Para 42(iii)) Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375 : 2023 INSC 468

Irretrievable Breakdown of Marriage - Fault theory can be diluted by this Court to do 'complete justice' in a particular case, without breaching the self-imposed restraint applicable when this Court exercises power under Article 142(1) of the Constitution of India - Apportioning blame and greater fault may not be the rule to resolve and adjudicate the dispute in rare and exceptional matrimonial cases - It would be in the best interest of all, including the individuals involved, to give legality, in the form of formal divorce, to a dead marriage, otherwise the litigation(s), resultant sufferance, misery and torment shall continue. (Para 29) Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375 : 2023 INSC 468

Irretrievable Breakdown of Marriage - Illustrative list of factors which are to be considered while granting divorce on this ground. (Para 33) Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375 : 2023 INSC 468

Irretrievably broken-down marriage can be dissolved on ground of 'cruelty'. Rakesh Raman v. Kavita, 2023 LiveLaw (SC) 353 : AIR 2023 SC 2144 : 2023 INSC 433

Family Pension

Child adopted by widow after death of govt. employee not entitled to family pension. Shri Ram Shridhar Chimurkar v. Union of India, 2023 LiveLaw (SC) 40 : AIR 2023 SC 618 : (2023) 4 SCC 312 : (2023) 1 SCR 931 : 2023 INSC 49

Family Pension - Family pension was devised as a means to help the dependents of the deceased government servant tide over the crisis and to extend to them some succour. (Para 12) Shri Ram Shridhar Chimurkar v. Union of India, 2023 LiveLaw (SC) 40 : AIR 2023 SC 618 : (2023) 4 SCC 312 : (2023) 1 SCR 931 : 2023 INSC 49

Foreign Judgments

Reliance of Foreign Judgments - Considering the different position of laws in US and in our country more particularly faced with Articles 19(1)(c) and 19(4) of the Constitution of India under which the right to freedom of speech is subject to reasonable restrictions and is not an absolute right and the constitution permits the Parliament to frame the laws taking into consideration the public order and/or the sovereignty of India, without noticing the differences in American Laws and the Indian laws, this Court in the case of Arup Bhuyan (supra) and Raneep (supra) has erred in straightway and directly following the US Supreme Court decisions and that too without adverting to the differences and the position of laws in India. (Para 13) Arup Bhuyan v. State of Assam, 2023 LiveLaw (SC) 234 : AIR 2023 SC 1685 : 2023 INSC 292

Foreign Trade Policy

Foreign Trade Policy of 2015-2020 (FTP) - The bench set aside the judgment of the Gujarat High Court where it had quashed the amending Notifications, i.e., Notification No. 33 / 2015-20 and 79 / 2017-Customs, dated 13.10.2017, by which the Director General of Foreign Trade (DGFT) had imposed the 'pre-import' and 'physical export' conditions for availing IGST and Compensation Cess exemption on imports made under 'Advance Authorisation'. Union of India v. Cosmo Films Ltd; 2023 LiveLaw (SC) 367

Foreign Trade Policy of 2015-2020 (FTP) - The Supreme Court has upheld the requirement of a 'pre-import condition' incorporated in the Foreign Trade Policy of 2015-2020 (FTP) and Handbook of Procedures 2015-2020 (HBP) to claim exemption of Integrated Goods and Services Tax (IGST) and GST Compensation Cess on inputs imported into India for manufacture of export goods, on the basis of 'Advance Authorization'. Union of India v. Cosmo Films Ltd; 2023 LiveLaw (SC) 367

Foreign Trade Policy of 2015-2020 (FTP) - While holding that the concept of 'preimport condition' was not alien, the court observed that paragraph 4.13 (i) of the FTP itself empowered the DGFT to impose 'pre-import conditions' on articles other than those specified in Appendix-4J of the HBP. The bench remarked that the Gujarat High Court had failed to consider the same and had erroneously proceeded on the assumption that only the goods specified in the said Appendix were subject to the 'pre-import condition'. Union of India v. Cosmo Films Ltd; 2023 LiveLaw (SC) 367

Frivolous Litigations

Just as bad coins drive out good coins from circulation, bad cases drive out good cases from being heard on time. Because of the proliferation of frivolous cases in the courts, the real and genuine cases have to take a backseat and are not being heard for years together. The party who initiates and continues a frivolous, irresponsible and senseless litigation or who abuses the process of the court must be saddled with exemplary cost, so that others may deter to follow such course. (Para 20) Chanchalapati Das v. State of West Bengal, 2023 LiveLaw (SC) 446

The matter should be viewed more seriously when people who claim themselves and project themselves to be the global spiritual leaders, engage themselves into such kind of frivolous litigations and use the court proceedings as a platform to settle their personal scores or to nurture their personal ego. (Para 20) Chanchalapati Das v. State of West Bengal, 2023 LiveLaw (SC) 446

Supreme Court reprimands HUDA Authority for filing frivolous appeal; imposes cost of Rs. 1 Lakh. Haryana Urban Development Authority v. Jagdeep Singh, 2023 LiveLaw (SC) 429 : AIR 2023 SC 2257 : 2023 INSC 503

For filing the present frivolous appeal, in our opinion, the Appellants deserve to be burdened with heavy cost. This Court had deprecated the conduct of the litigants in flooding this Court with frivolous litigations, which are choking the dockets as a result of which the matters, which require consideration are delayed. On merits also a similar issue came up for consideration before this Court in Sanjay Gera vs. Haryana Urban Development Authority & Anr., (2005) 3 SCC 207. In the aforesaid case, the plot was allotted in the same Sector-14 (Part), Hissar. Additional price was demanded for the same as is projected in the case in hand. Though the High Court had not granted relief to the allotee, therein however this Court accepted the plea and quashed the demand of additional price from the allottee, interpreting the same condition in the letter of allotment as is in the case in hand. (Para 15 - 17) Haryana Urban Development Authority v Jagdeep Singh, 2023 LiveLaw (SC) 429 : AIR 2023 SC 2257 : 2023 INSC 503

In the case in hand, the civil suit was filed on 1.10.2003 by the Respondent challenging the demand of additional price. Judgment of this Court in Sanjay Gera's case was delivered on 22.02.2005. Despite this fact being in knowledge of the Appellants, the suit was contested and the same was decreed on 19.08.2008. The matter did not end here, appeal was preferred by the appellant before the First Appellate Court and on failure even before the High Court and thereafter before this Court. For the aforesaid reasons and wasting the time of the Courts at different levels, we deem it appropriate to burden the Appellants with a cost of ₹1,00,000/- to be deposited with the Supreme Court Mediation Centre. In addition, the Respondent having been dragged in unnecessary litigation upto this Court deserves to be awarded cost of ₹50,000/-. The aforesaid amount shall be recovered by the Appellants from the guilty officers/officials who opined the case to be fit for filing appeal at different levels despite being covered by judgment of this Court. (Para 20 - 22) Haryana Urban Development Authority v Jagdeep Singh, 2023 LiveLaw (SC) 429 : AIR 2023 SC 2257 : 2023 INSC 503

The additional amount sought to be recovered from the Respondent was ₹26,880/- to which there was no justification even at the stage of issuance of notice. The suit was decreed on 19.08.2008. The amount spent on litigation would be much more. It is because of impersonal and irresponsible attitude of the officers, who want to put everything to Court and shirk to take decisions. However, still the Appellants had not only filed appeals, resulting in 2 addition to the pendency of cases and also must have spent huge amounts on litigation in the form of fee of the counsels and allied expenses. Besides that, a number of officer(s)/official(s) must have visited the counsel engaged either at Chandigarh, when the matter was taken up in the High Court and thereafter to this Court, when the order was challenged before this Court. Even that amount also needs to be calculated and recovered from the guilty officers who, despite there being judgment of this Court, dealing with the same issue, opined the case to be fit for filing appeals. (Para 23, 24) Haryana Urban Development Authority v Jagdeep Singh, 2023 LiveLaw (SC) 429 : AIR 2023 SC 2257 : 2023 INSC 503

G

General Sales Tax Act, 1968 (Himachal Pradesh)

General Sales Tax Act, 1968 (Himachal Pradesh) - Section 16B of the HPGST Act is not ultra vires any provision of law. The bench set aside the judgment of the Himachal Pradesh High Court where it had held that Section 16-B was inconsistent with Section 35 of the SARFAESI Act and was ultra vires the provisions of the Constitution of India. State of Himachal Pradesh v. A.J. Infrastructures Pvt. Ltd; 2023 LiveLaw (SC) 366

General Sales Tax Act, 1968 (Himachal Pradesh); Section 16B - State cannot resort to the provisions of the Himachal Pradesh Land Revenue (HPLR) Act, 1954 for recovering sales tax dues as arrears of land revenue by creating a charge on the mortgaged property under Section 16-B of the HPGST Act, when proceedings under the HPLR Act were not initiated upon notice to the defaulters and the sum owed to the department had not been finally determined. State of Himachal Pradesh v. A.J. Infrastructures Pvt. Ltd; 2023 LiveLaw (SC) 366

H

Hate Speech