Supreme Court Weekly Digest With Subject /Statute Wise Index [February 25 to 29]

Abuse of Process of Law

Special Leave Petitions - Several matters, wherein the special leave petitions are filed either against the order seeking adjournment or the order issuing notices or grant/refusal of interim protections. Filing of such petitions not only wastes the time of the Court but it also puts unnecessary burden on the Courts and adds up to the pendency of matters before the Courts. Ranbir Singh v. State of Uttar Pradesh, 2024 LiveLaw (SC) 171

Bail

Bail / Anticipatory Bail - Expeditious adjudication of bail matters - High Court's duty to ensure timely justice - Supreme Court's directive to High Court of Bombay - Constitutionality of Article 21 - Liberty of citizen paramount - Urgency in deciding bail applications emphasized. (Para 3 - 6) Amol Vitthal Vahile v. State of Maharashtra, 2024 LiveLaw (SC) 159

Bail / Anticipatory Bail - Application for anticipatory bail was not decided for a period of more than four years. The Judges are not deciding the matter on merits but find an excuse to shunt the case on different grounds. Held, decide the matter pertaining to bail / anticipatory bail as expeditiously as possible. (Para 4 - 6) Amol Vitthal Vahile v. State of Maharashtra, 2024 LiveLaw (SC) 159

Cash Transfer of Food Subsidy Rules, 2015

Cash Transfer of Food Subsidy Rules, 2015 – Object – To provide food subsidy in cash directly into the bank accounts of entitled households to purchase the entitled quantity of food grains from the open market. (Para 6) Anun Dhawan v. Union of India, 2024 LiveLaw (SC) 161

Code of Criminal Procedure, 1973

A case diary is maintained by an Investigating Officer during his investigation for the purpose of entering the day-to-day proceedings of the investigation. While doing so, the Investigating Officer should mandatorily record the necessary particulars gathered in the course of investigation with the relevant date, time and place. Under sub-section (1-A) and (1-B) of Section 172 of CrPC, the Investigating Officer has to mention, in his case diary, the statement of witnesses recorded during investigation with due pagination. Sub-section (1-A) and (1-B) were inserted by Act 5 of 2009 with effect from 31/12/2009. The object of these sub-sections is to facilitate a fair investigation since a statement made under Section 161 of CrPC is not expected to be signed as mandated by Section 162 of CrPC. (Para 20) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Code of Criminal Procedure, 1973; Section 172 (3) - Evidence Act, 1872; Section 145 and 161 - Whenever a case is made out either under Section 145 or under Section 161 of the Evidence Act, the benefit conferred thereunder along with the benefit of Section 172(3) of CrPC has to be extended to an accused. Thus, the accused has a right to cross-examine a police officer as to the recording made in the case diary whenever the police officer uses it to refresh his memory. Though Section 161 of the Evidence Act does not restrict itself to a case of refreshing memory by perusing a case diary alone, there is no exclusion for doing so. Similarly, in a case where the court uses a case diary for the purpose of contradicting a police officer, then an accused is entitled to peruse the said statement so recorded which is relevant, and cross-examine the police officer on that count. What is relevant in such a case is the process of using it for the purpose of contradiction and not the conclusion. To make the position clear, though Section 145 read with Section 161 of the Evidence Act deals with the right of a party including an accused, such a right is limited and restrictive when it is applied to Section 172 of CrPC. Suffice it is to state that the said right cannot be declined when the author of a case diary uses it to refresh his memory or the court uses it for the purpose of contradiction. Therefore, held that Section 145 and Section 161 of the Evidence Act on the one hand and Section 172(3) of CrPC on the other are to be read in consonance with each other, subject to the limited right conferred under sub-section (3) of Section 172 of CrPC. (Para 27) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Code of Criminal Procedure, 1973; Section 202 – Issue of summon – The Magistrate cannot issue the summons until there is satisfaction that the material was sufficient to pass the summoning order. The learned Magistrate being not satisfied that the material on the record of the complaint, was sufficient to pass the summoning order, had called for the police report under Section 202 of the Cr.PC. Once the Magistrate has called for the police report under Section 202 of the Cr.PC, then the magistrate couldn't issue summon unless the report is submitted by the police. The order issuing process has drastic consequences and requires application of mind. The learned Magistrate was not justified in passing the order to issue a summons. Shiv Jatia v. Gian Chand Malick, 2024 LiveLaw (SC) 169

Code of Criminal Procedure, 1973; Section 202(1) – Postponement of issue of process – Section 202(1) was amended with effect from 23rd June 2006. The requirement of postponing the issue of the process is applicable only when one of the accused stays outside the jurisdiction of the court. The mandate of postponing the issue of the process introduced with effect from 23rd June 2006 was not applicable on the date of filing of the complaint in 2004. Shiv Jatia v. Gian Chand Malick, 2024 LiveLaw (SC) 169

Commercial Courts Act, 2015

Commercial Courts Act, 2015; Section 2(1)(c)(vii) - Merely because the dispute is related to an immovable property wouldn't per se make it a commercial dispute unless the immovable property is 'actually used' exclusively in trade or commerce. S.P. Velayutham v. Emaar Mgf Land Ltd., 2024 LiveLaw (SC) 179

Constitution of India

Article 21 of the Constitution of India is the soul of the Constitution as the liberty of a citizen is of paramount importance. Not deciding the matter pertaining to liberty of a citizen expeditiously and shunting away the matter on one or the other ground would deprive the party of their precious right guaranteed under Article 21 of the Constitution of India. (Para 3) Amol Vitthal Vahile v. State of Maharashtra, 2024 LiveLaw (SC) 159

Constitution of India – Scope of judicial review in policy matters – The Courts do not and cannot examine the correctness, suitability or appropriateness of a policy, nor are the courts advisors to the executive on the matters of policy which the executive is entitled to formulate. The Courts cannot direct the States to implement a particular policy or scheme on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, would be the subject of judicial review. The scope of judicial review in examining the policy matters is very limited. (Para 8) Anun Dhawan v. Union of India, 2024 LiveLaw (SC) 161

Constitution of India, 1950; Article 21 and 47 – Right to food – Although the Constitution of India does not explicitly provide for Right to food, the fundamental Right to life enshrined in Article 21 of the Constitution does include Right to live with human dignity and right to food and other basic necessities. Article 47 of the Constitution also provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. (Para 5) Anun Dhawan v. Union of India, 2024 LiveLaw (SC) 161

Constitution of India, 1950; Article 142 doesn't empower Courts to ignore substantive rights of litigants - Issued guidelines on exercise of inherent powers. High Court Bar Association Allahabad v. State of Uttar Pradesh, 2024 LiveLaw (SC) 177

Contract Act, 1872

Contract Act, 1872; Section 182 - Distributor, not agent: independent contractor. Bharti Cellular Ltd. v. Assistant Commissioner, 2024 LiveLaw (SC) 176

Control of National Highways (Land and Traffic) Act, 2002

Control of National Highways (Land and Traffic) Act, 2002 – Effective Implementation – Machinery for Oversight and Grievance Redressal – Survey of Highways – Removal of unauthorized encroachments on highway land – Compliance with Amendments – Directions Issued. Gyan Prakash v. Union of India, 2024 LiveLaw (SC) 164

Evidence Act, 1872

Evidence Act, 1872; Section 113A – Presumption as to abetment of suicide by a married women – The words 'may presume' makes the presumption discretionary. Before the presumption under Section 113A is raised, the prosecution must show (1) that her husband or relatives subjected her to cruelty and (2) that the married woman committed suicide within a period of seven years from the date of her marriage. The presumption would not be automatically applied on the mere fact that the deceased committed suicide within a period of seven years of her marriage. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty, the presumption under Section 113A of the Evidence Act may be raised, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Naresh Kumar v. State of Haryana, 2024 LiveLaw (SC) 166

Evidence Act, 1872; Section 145 and 161 - When a police officer uses a case diary for refreshing his memory, an accused automatically gets a right to peruse that part of the prior statement as recorded in the police officer's diary by taking recourse to Section 145 or Section 161, as the case may be, of the Evidence Act. (Para 26) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Evidence Act, 1872; Section 145 and 161 - Accused has a right to cross-examine a police officer as to the recording made in the case diary whenever the police officer uses it to refresh his memory. Similarly, in a case where the court uses a case diary for the purpose of contradicting a police officer, then an accused is entitled to peruse the said statement so recorded which is relevant, and cross-examine the police officer on that count. Although the accused or his agents have no right to seek production of the case diaries as per Section 172(3) of the Code of Criminal Procedure, whenever the police officer uses it to refresh his memory, the accused will get a right to access it for the purpose of cross-examination. (Para 22, 26 & 27) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Evidence Act, 1872; Section 145 and 161 - While it is the responsibility and duty of the Investigating Officer to make a due recording in his case diary, there is no corresponding right under subsection (3) of Section 172 of CrPC for accused to seek production of such diaries, or to peruse them, except in a case where they are used by a police officer maintaining them to refresh his memory, or in a case where the court uses them for the purpose of contradicting the police officer. In such a case, the provision of Section 145 or Section 161, as the case may be, of the Evidence Act, shall apply. (Para 22) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Food Safety and Standards Act, 2006

If a case is registered against an accused for food adulteration under the Indian Penal Code, 1860 (“IPC”), then by virtue of the overriding effect of Section 89 of Food Safety and Standards Act, 2006 (“FSSA”), the proceedings under IPC cannot be continued against the accused. There cannot be simultaneous prosecution under the IPC and FSSA because by virtue of Section 89 of FSSA, Section 59 of FSSA would override the provisions of Sections 272 and 273 of the IPC. Ram Nath v. State of Uttar Pradesh, 2024 LiveLaw (SC) 160

Section 3 (zz) and (zx) - “unsafe food” - the concept of unsafe food is more comprehensive than the concept of adulterated food. Unsafe food means an article of food whose nature, substance or quality is so affected as to render it injurious to health. Substandard food cannot be unsafe food. By adding a substance directly or as an ingredient which is not permitted makes an article of food unsafe food. The presence of any harmful substance in the article of food makes it unsafe food. Therefore, if any adulterant is added to an article of food, which renders the article of food injurious to health, the food article becomes unsafe food. (Para 9 - 11) Ram Nath v. State of Uttar Pradesh, 2024 LiveLaw (SC) 160

Section 273 of the IPC applies when a person sells or, offers or exposes for sale any article of food or drink which has been rendered noxious or has become unfit for food or drink. Section 273 incorporates requirements of knowledge or reasonable belief that the food or drink sold or offered for sale is noxious. Section 59 of the FSSA does not require the presence of intention as contemplated by Section 272 of the IPC. Under Section 59 of the FSSA, a person commits an offence who, whether by himself or by any person on his behalf, manufactures for sale or stores or sells or distributes any article of food for human consumption which is unsafe. So, the offence under Section 59 of the FSSA is made out even if there is an absence of intention as provided in Section 272 of the IPC. (Para 18) Ram Nath v. State of Uttar Pradesh, 2024 LiveLaw (SC) 160

The prosecution under IPC can't be continued because Section 89 of FSSA provides an overriding effect to the provisions of the FSSA over any other law in so far as the law applies to the aspects of food in the field covered by the FSSA. Ram Nath v. State of Uttar Pradesh, 2024 LiveLaw (SC) 160

The title of the section indeed indicates that the intention is to give an overriding effect to the FSSA over all 'food related laws'. However, in the main Section, there is no such restriction confined to 'food related laws', and it is provided that provisions of the FSSA shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. So, the Section indicates that an overriding effect is given to the provisions of the FSSA over any other law. (Para 20) Ram Nath v. State of Uttar Pradesh, 2024 LiveLaw (SC) 160

When the offences under Section 272 and 273 of the IPC are made out, even the offence under Section 59 of the FSSA will be attracted. In fact, the offence under Section 59 of the FSSA is more stringent. (Para 20) Ram Nath v. State of Uttar Pradesh, 2024 LiveLaw (SC) 160

Forest

States/UTs must follow the definition of 'forest' given by Godavarman Judgment till forests are identified as per 2023 rules. Ashok Kumar Sharma IFS (Retd) v. Union of India, 2024 LiveLaw (SC) 170

Interim Order restricting zoos / safaris within forests will operate only till final Judgment of coordinate Bench. Ashok Kumar Sharma IFS (Retd) v. Union of India, 2024 LiveLaw (SC) 170

Income Tax Act, 1961

Income Tax Act, 1961; Section 194H - the assessees would not be under a legal obligation to deduct tax at source on the income/profit component in the payments received by the distributors / franchisees from the third parties/customers, or while selling/transferring the pre-paid coupons or starter-kits to the distributors. (Para 42) Bharti Cellular Ltd. v. Assistant Commissioner, 2024 LiveLaw (SC) 176

Internet Shutdown

The Union Territory of Jammu and Kashmir agreed before the Supreme Court to publish the orders passed by the review committees regarding internet shutdown in the region, except for the internal deliberations. Foundation for Media Professionals v. Union Territory of Jammu and Kashmir, 2024 LiveLaw (SC) 173

National Food Security Act, 2013

National Food Security Act, 2013 – There being a systematic legal framework provided under the NFSA for the implementation of the schemes and programmes for providing food and nutritional security, no direction is required to implement the concept of Community Kitchens as prayed for by the petitioners in the instant petition. It is open for the States/UTs to explore such alternative welfare schemes as may be permissible under the NFSA. (Para 7 & 9) Anun Dhawan v. Union of India, 2024 LiveLaw (SC) 161

National Food Security Act, 2013 – Object - To provide for food and nutritional security in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto. With the enactment of the NFSA there was a paradigm shift in the approach to food security from “welfare to rights based approach.” (Para 6) Anun Dhawan v. Union of India, 2024 LiveLaw (SC) 161

Penal Code, 1860

Penal Code, 1860 – Subjective test of Intention - A person intends a consequence when he (1) foresees that it will happen if the given series of acts or omissions continue, and (2) desires it to happen. The most serious level of culpability, justifying the most serious levels of punishment, is achieved when both these components are actually present in the accused's mind. Naresh Kumar v. State of Haryana, 2024 LiveLaw (SC) 166

Penal Code, 1860; Section 306 – Abetment of Suicide – The basic ingredients to constitute an offence under Section 306 of the IPC are suicidal death and abetment thereof. Oral evidence of witnesses does not disclose any form of incessant cruelty or harassment on the part of the husband which would in ordinary circumstances drag the wife to commit suicide as if she was left with no other alternative. Mere demand of money from the wife or her parents for running a business would not constitute cruelty or harassment. In order to convict an accused under Section 306 IPC, the state of mind to commit a particular crime cannot be assumed to be ostensibly present but has to be visible and conspicuous. It also requires an active act or direct act which led the deceased to commit suicide. Mere harassment is not sufficient to hold an accused guilty of abetting the commission of suicide. The court should look for cogent and convincing proof of the act of incitement to the commission of suicide and such an offending action should be proximate to the time of occurrence. In the absence of any cogent evidence of harassment or cruelty, an accused cannot be held guilty for the offence under Section 306 of IPC by raising presumption under Section 113A. Naresh Kumar v. State of Haryana, 2024 LiveLaw (SC) 166

Penal Code, 1860; Section 361 & 363 – Kidnapping from lawful guardianship – 'Kidnapping' within the meaning of Section 361 of IPC was established by the prosecution. Held, there was no reason for the father of the victim to falsely implicate the appellants and tutor the child to depose against them. Hence, the accused is convicted for the lesser offence of kidnapping defined by Section 361 of IPC, which is punishable under Section 363 of IPC. William Stephen v. State of Tamil Nadu, 2024 LiveLaw (SC) 168

Penal Code, 1860 – Section 364A – Kidnapping for ransom - Ingredients – There should be a kidnapping or abduction of any person or a person should be kept in detention after such kidnapping or abduction. If the said act is coupled with a threat to cause death or hurt to such person, an offence under Section 364A is attracted. William Stephen v. State of Tamil Nadu, 2024 LiveLaw (SC) 168

Penal Code, 1860; Section 364A – Kidnapping for ransom not established – Mere Demand For Ransom without a threat to death or hurt would not Amount to offence under Section 364A. The ingredients of Section 364A of IPC were not proved by the prosecution in as much as the prosecution failed to lead cogent evidence to establish the second part of Section 364A about the threats given by the accused to cause death or hurt to such person. Only if the threats given to the parents or the close relatives of the kidnapped person by the accused was established, then a case could be made out that there was a reasonable apprehension that the person kidnapped may be put to death or hurt may be caused to him. Conviction of the appellants for the offence punishable under Section 364A of IPC is set aside. William Stephen v. State of Tamil Nadu, 2024 LiveLaw (SC) 168

Evidence Act, 1872; Section 65B – Admissibility of electronic record – Certificate to prove electronic evidence – The call records were discarded by the High Court as there was no certification under Section 65B of the Evidence Act. The Investigating Officer, was not aware of the procedure to be followed for obtaining a certificate under Section 65B of the Evidence Act. The State Government must ensure that the Police Officers are imparted proper training on this aspect. William Stephen v. State of Tamil Nadu, 2024 LiveLaw (SC) 168

Police Act, 1861

The information disclosing the commission of the cognizable offence needs to be recorded as a First Information Report (FIR) in the form of a book and not in the General Diary maintained by the Police. (Para 28) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Prevention of Money Laundering Act, 2002

A very strange and unusual Writ Petitions have been filed by the State against the Directorate of Enforcement under Article 226 of the Constitution of India, before the High Court seeking relief, which would indirectly stall or delay the inquiry/investigation. The Writ Petitions filed, at the instance of the State Government, challenging summons issued to the District Collectors prima facie appears to be thoroughly misconceived, and the impugned order passed by the High Court also being under utter misconception of law. Directorate of Enforcement v. State of Tamil Nadu, 2024 LiveLaw (SC) 172

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Though, the Right to Property is no more a Fundamental Right, still it is recognized as a Constitutional Right under Article 300A of the Constitution of India. Depriving a citizen of his Constitutional Right to use the land for 20 years and then showing graciousness by paying the compensation and beating drums that the State has been gracious is unacceptable. The state is not doing charity by paying compensation to the citizens for acquisition of land. (Para 25 & 26) Sudha Bhalla @ Sudha Punchi v. Rakesh Kumar Singh, 2024 LiveLaw (SC) 167

Sale

Ownership over property can't be claimed when a sale deed is executed by a person having no title. Savitri Bai v. Savitri Bai, 2024 LiveLaw (SC) 178

Sale agreement with minor void, not enforceable in law. Krishnaveni v. M.A. Shagul Hameed, 2024 LiveLaw (SC) 165

Service Law

Police Subordinate Service Rules, 1989 (Rajasthan); Rule 24(4) which provides that no candidate shall be eligible for appointment to the service who has more than two children on or after 01.06.2002 is non-discriminatory and does not violate the Constitution. Ramji Lal Jat v. State of Rajasthan, 2024 LiveLaw (SC) 175

Stay

Applications to vacate interim reliefs can't be kept pending for long' - Issued guidelines to High Court's on granting and vacating interim stay. High Court Bar Association Allahabad v. State of Uttar Pradesh, 2024 LiveLaw (SC) 177

High Courts and Supreme Courts should refrain from fixing time-bound schedules for case disposal in other courts ordinarily. High Court Bar Association Allahabad v. State of Uttar Pradesh, 2024 LiveLaw (SC) 177

No automatic vacation of stay orders of High Courts on civil and criminal trials - Overruled Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, (2018) 16 SCC 299. High Court Bar Association Allahabad v. State of Uttar Pradesh, 2024 LiveLaw (SC) 177

Supreme Court Rules, 2013

Supreme Court Rules, 2013 - Curative Petitions - Registry shouldn't exercise judicial function, can't refuse curative petition saying review was dismissed in open court. Brahmaputra Concrete Pipe Industries v. Assam State Electricity Board, 2024 LiveLaw (SC) 163