Supreme Court Weekly Digest With Subject/Statute Wise Index [February 1 to 11]

Armed Forces Tribunal Act, 2007

Armed Forces Tribunal Act, 2007; Section 31 - The recruitment was not confined to the priority / reserved class rather it was open for general category also in case vacancies remain available. The Recruitment application(s) clearly establishes that the appellants have applied as a general category candidate(s) against the surplus seats/vacancies remaining unfilled after considering the priority/reserved quota for relatives of servicemen/ex-servicemen, etc. In a situation, when they have not claimed any enrollment/recruitment on the basis of relationship with servicemen/ex-servicemen, there was no occasion for them to submit any relationship certificate. The discharge/dismissal of the appellants from service is vitiated on grounds that they have actually not produced any relationship certificate for selection/recruitment as they never applied in the reserved category. The discharge/dismissal order of the appellants is certainly invalid for want of nonconsideration of the plea taken by the appellants. (Para 17, 24) 2024 LiveLaw (SC) 102

Armed Forces Tribunal Act, 2007; Section 31 - It was not the case of the respondents ever that the vacancies on which the appellants have been enrolled/recruited were only for the alleged reserved category and not for general category. Subsequent improvement in defence and supplementing reasoning of discharge/dismissal which is not contained in the order impugned is not permissible in law. (Para 23) 2024 LiveLaw (SC) 102

Caste Certificate 

Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000; Section 3 & 4 - The Caste Certificate issued by the Competent Authority under Section 4 would be valid subject to the verification and grant of Validity Certificate by the Scrutiny Committee. The certificate attains finality only if it is authenticated with a Validity Certificate. (Para 5) 2024 LiveLaw (SC) 99

Central Excise Act, 1944

Central Excise Act, 1944; Section 11B - It entitles any person claiming refund of any duty of excise and interest to make an application for refund of such duty and interest before the expiry of one year from the relevant date (prior to 12.05.2000, it was six months instead of one year). (Para 9.2) 2024 LiveLaw (SC) 90

Central Excise Act, 1944; Section 11BB - It provides for interest on delayed refund. It says that if any duty ordered to be refunded under sub-section (2) of Section 11B to any applicant is not refunded within three months from the date of receipt of the application under subsection (1) of that section, there shall be paid to such applicant interest at such rate not below five percent and not exceeding thirty percent per annum as for the time being fixed by the Central Government, by notification in the Official Gazette. (Para 9.3) 2024 LiveLaw (SC) 90

Chartered Accountants Act, 1949

Chartered Accountants Act, 1949; Section 29A and 21A(4), Chartered Accountants (Procedure of Investigation of Professional and Other Misconduct and Conduct of Cases) Rules, 2007; Rule 9(3)(b) - Rule 9(3)(b) of subordinate legislation challenged as being ultra vires, on the ground that it exceeds the Rule making power under Section 29A(2)(c) of the parent Act. The power to make rules generally for carrying out the provisions of the Act is found in Section 29A(1). Section 29A(2) is only illustrative and should not be construed as limiting the scope of the general power of the Central Government to make rules under Section 29A(1). Even if specific topics are not explicitly listed in the statute, the formulation of rules can be justified if it falls within the general power conferred, provided it stays within the overall scope of the Act. The impugned Rule 9(3)(b) falls within the scope of the general delegation of power under Section 29A(1). Hence the Impugned Rule is not ultra vires the Parent Act. (Para 34 & 37) 2024 LiveLaw (SC) 101

Principle of 'Generality vs Enumeration' - Where a statute confers particular powers without prejudice to the generality of a general power already conferred, the particular powers are only illustrative of the general power, and do not in any way restrict the general power. The illustrative list of subjects set out in Section 29A(2) cannot be read as exhaustive since the legislature has deployed the expression 'without prejudice to the generality of the foregoing provisions' before enumerating the specific heads for exercising the rule-making power. (Para 32) 2024 LiveLaw (SC) 101

Chartered Accountants (Procedure of Investigation of Professional and Other Misconduct and Conduct of Cases) Rules, 2007; Rule 9(3)(b) and The Chartered Accountants Act, 1949; Section 21A(4) and 29A - Rule 9(3)(b) of subordinate legislation challenged on the ground of being 'ultra vires' to Section 21A(4) of the parent Act. In cases where the Board disagrees with the opinion of the Director, under Section 21A(4) the Board may advise the Director to further investigate the matter. However, Rule 9(3) does not limit itself to directions for further investigation. It also enables the Board to straightaway proceed to act by itself or refer the matter to the Disciplinary Committee, depending on whether the alleged misconduct relates to the First Schedule or Second Schedule. The 'prima facie' opinion of the Director will become nothing but a final opinion if the Board will have no option except to direct the Director to further investigate the matter. The impugned Rule falls within the scope of the general delegation of power under Section 29A(1). (Para 19 & 37) 2024 LiveLaw (SC) 101

Code of Criminal Procedure, 1973

The Police Officer seems to be under an impression that the accused has to appear before him and prove his innocence. Such an approach cannot be countenanced. 2024 LiveLaw (SC) 106

When there is a fixed term sentence and especially when the appeal is not likely to be heard before completing the entire period of sentence, normally suspension of sentence and bail should be granted. 2024 LiveLaw (SC) 93

Code of Criminal Procedure, 1973; Section 482 - If the charge sheet is filed against the accused during the pendency of the petition for quashing of the FIR, the High Court is not restrained from exercising its inherent jurisdiction and could still examine if offences alleged to have been committed were prima facie made out or not on the basis of the F.I.R., charge sheet and other documents. 2024 LiveLaw (SC) 86

Contempt of Court

Mere delay in complying with the order, unless there is a deliberate or wilful act on the part of the alleged contemnors would not attract the provisions of Contempt of Courts Act. 2024 LiveLaw (SC) 104

Criminal Justice System

In recent years the machinery of criminal justice is being misused by certain persons for their vested interests and for achieving their oblique motives and agenda. Courts have therefore to be vigilant against such tendencies and ensure that acts of omission and commission having an adverse impact on the fabric of our society must be nipped in the bud. 2024 LiveLaw (SC) 96

Customs Act, 1962

Customs Act, 1962; Section 27 - Deals with claim for refund of duty. As per subsection (1), any person claiming refund of any duty or interest paid by him or borne by him, may make an application in the prescribed form and manner, for such refund addressed to the designated authority before the expiry of one year from the date of payment of such duty or interest. Explanation below sub-section (1) clarifies that for the purpose of sub-section (1), the date of payment of duty or interest in relation to a person, other than an importer, shall be construed as the date of purchase of goods by such person. (Para 10) 2024 LiveLaw (SC) 90

Customs Act, 1962; Section 27 (2) - It says that if on the receipt of such application the designated authority is satisfied that the whole or any part of the duty and interest, if any, paid on such duty, paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Consumer Welfare Fund established under Section 12C of the Central Excise Act. However, as per the proviso, the amount of duty and interest so determined shall be paid to the applicant instead of being credited to the Consumer Welfare Fund if such amount is relatable, amongst others, to drawback of duty payable under Sections 74 and 75 of the Customs Act. (Para 10.1) 2024 LiveLaw (SC) 90

Customs Act, 1962; Section 27A - Provides for interest on delayed refund. It says that, if any duty ordered to be refunded under sub-section (2) of Section 27 to an applicant is not refunded within three months from the date of receipt of the application, there shall be paid to that applicant interest at such rate not below five percent and not exceeding thirty percent per annum as is for the time being fixed by the Central Government, by notification in the Official Gazette, on such duty from the date immediately after the expiry of three months from the date of receipt of such application till the date of refund of such duty. (Para 11) 2024 LiveLaw (SC) 90

Customs Act, 1962; Section 75A - Deals with interest on drawback. Sub-section (1) of Section 75A says that, where any drawback payable to a claimant under Section 74 or Section 75 is not paid within a period of one month (earlier it was two months and prior thereto it was three months) from the date of filing a claim for payment of such drawback, there shall be paid to that claimant in addition to the amount of drawback, interest at the rate fixed under Section 27A from the date after the expiry of the said period of one month till the date of payment of such drawback. (Para 12) 2024 LiveLaw (SC) 90

Environment

The National Green Tribunal's recurrent engagement in unilateral decision making, provisioning ex post facto review hearing and routinely dismissing it has regrettably become a prevailing norm. In its zealous quest for justice, the Tribunal must tread carefully to avoid the oversight of propriety. The practice of ex parte orders and the imposition of damages amounting to crores of rupees, have proven to be a counterproductive force in the broader mission of environmental safeguarding. It is imperative for the Tribunal to infuse a renewed sense of procedural integrity, ensuring that its actions resonate with a harmonious balance between justice and due process. Only then can it reclaim its standing as a beacon of environmental protection, where well-intentioned endeavors are not simply washed away. (Para 4 & 5) 2024 LiveLaw (SC) 97

Evidence Law

Ocular Evidence - No doubt, they are members of the family and may be interested persons but their testimony cannot be discarded simply for the reason that they are family members in the scenario of the case that the incident took place inside the house of the deceased Shivanna, where there could not have been any other eyewitnesses other than the family members. The evidence of the aforesaid two eyewitnesses could not be shaken in the cross-examination. (Para 16) 2024 LiveLaw (SC) 88

Ocular evidence is sufficient to prove the guilt of the accused even if it unmatches with the doctor's expert evidence-Undoubtedly, only one kind of weapon i.e. chopper was used in committing the crime and, therefore, the evidence of the doctor may not be matching with that of the prosecution, but again, the ocular evidence of PW-3 and PW-4 is sufficient enough to prove that only chopper was used as a weapon of crime. In the light of the said evidence of the two eyewitnesses, the suggestion or opinion of the doctor cannot prevail as the opinion based upon probability is weak evidence in comparison to the ocular evidence of eyewitnesses. (Para 21) 2024 LiveLaw (SC) 88

Witness who was shown in the prosecution list but not examined by prosecution can be summoned as a defence witness. (Para 3 & 4) 2024 LiveLaw (SC) 98

Interpretation of Statutes

If a plain reading of a clause fulfills the object and purpose of the statute, then the rule of 'Reading Down' the clause would not be applied just because the clause imposes harsher consequences. 2024 LiveLaw (SC) 85

The rule of 'reading down' the provision should not be applied at the first instance but should always be the last resort, i.e., only when the court finds that a particular provision, if for its plain meaning, cannot be saved from invalidation. Thus, by restricting or reading it down, the court makes it workable to salvage and save the provision from invalidation. (Para 99) 2024 LiveLaw (SC) 85

“Reading Down” a provision is one of the many methods the court may turn to when it finds that a particular provision, if for its plain meaning, cannot be saved from invalidation. So, by restricting or reading it down, the court makes it workable to salvage and save the provision from invalidation. The rule of “Reading Down” is only for the limited purpose of making a provision workable and its objective achievable.” (Para 99) 2024 LiveLaw (SC) 85

Judiciary

Due weightage must be given to protect the purity of the judicial process, particularly when departure from the usual process of assignment of case by the Chief Justice is noticed. As is rightly said, justice should not only be done but seen to have been done. The fairness and the transparency in the functioning of the courts must be discernible to all stakeholders in the justice delivery system. 2024 LiveLaw (SC) 91

Limitation Act, 1963 

Limitation Act, 1963 - Limitation period of one year for filing of suit for preemption — Held, the issue regarding limitation for filing of the suit is misconceived and it was not raised by the appellants before the lower Appellate Court or the High Court. (Para 18) 2024 LiveLaw (SC) 95

Liquor Shop

The restrictions which were introduced by this Court in K Balu, (2017) 2 SCC 281 were in the context of national and State highways. As clarified subsequently, where the area in question falls within municipal or local limits, the distance requirements which are spelt out in the applicable Rules or Regulations would have to be complied with. (Para 16) 2024 LiveLaw (SC) 89

Medical Termination Act, 1971

Medical Termination Act, 1971; Section 3(2)(b)(i) r/w (3) and 5 - Medical Termination of Pregnancy Rules, 2003; Rule 3B - Petitioner is having pregnancy of over 32 weeks by now, it is not advisable to accept her prayer as prayed for. (Para 5) 2024 LiveLaw (SC) 92

Panchayat

Maharashtra Temporary Extension of Period for Submitting Validity Certificate (for certain elections to Village Panchayats, Zilla Parishads and Panchayat Samitis) Act, 2023; Section 3(1) and 3(2) (b) - Section 3 provides an extended time to submit Validity Certificate within a period of twelve months from the date of commencement of this Act. The idea was that such elected candidates ought not to be deprived merely because of non-issuance of Validity Certificates when the applications are long pending before the scrutiny committee. Rejection of application by the scrutiny committee under Section 3(2)(b) would dis-entitle Appellant 1 from the benefit of Section 3. Rejection will also include cases in which applications are rejected on account of defaults committed by the applicants themselves. The application of appellant 1 was rejected by the scrutiny committee. Since there was no valid application filed by appellant before the nomination to the Scrutiny Committee, the protective umbrella of Section 3 does not apply to the appellant. (Para 40) 2024 LiveLaw (SC) 99

Maharashtra Village Panchayats Act, 1959; Section 10-1A provides, every person desirous of contesting election to a membership in the reserved category, shall submit alongwith the Nomination paper & Caste Certificate, a 'Validity Certificate' issued by the Scrutiny Committee. If such person fails to produce the Validity Certificate within a period of twelve months from the date on which he is declared elected, his election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a member. In violation of producing the validity certificate, the Appellant No.1 stood automatically disqualified as a Member with retrospective effect from the date of his election. (Para 36) 2024 LiveLaw (SC) 99

Maharashtra Village Panchayats Act, 1958; Section 35 - Validity of No-Confidence motion. A Motion of No Confidence is to be carried by not less than three-fourth of the total number of members who are entitled, to 'sit' and 'vote 'at any meeting. Held, the 3/4th member requirement for coming up with a no-confidence motion was fulfilled as appellant 1 has ceased to be a member because of automatic disqualification. (Para 42 & 43) 2024 LiveLaw (SC) 99

Penal Code, 1860

Penal Code. 1860; Section 149 - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence-A plain reading of the provision abundantly makes clear that an overt act of some of the accused persons of an unlawful assembly with the common object to kill the deceased Shivanna and to cause grievous hurt to the other family members is enough to rope in all of them for an offence under Section 302 IPC in aid with Section 149 IPC. (Para 20) 2024 LiveLaw (SC) 88

Penal Code, 1860; Section 302, 304 (Part II) and 34 - The prosecution has failed to establish common intention of Accused 3 to commit murder of deceased. Held, merely based on the presence of Accused 3 near the scene of offence and his family relations with the other accused, common intention cannot be established. That the trial court and the High Court have mechanically drawn inference against Accused 3 under Section 34. Further, participation of Accused 3 in assault is confirmed. Appeal of Accused 3 is allowed by altering the conviction under Section 302 to Section 304 Part II of IPC due to lack of evidence of common intention to murder. (Para 31) 2024 LiveLaw (SC) 94

Commutation of Sentence - The lack of cogent evidence to prove that Accused 3 shared a common intention to commit murder is an important factor to commute a sentence from Section 302 to Section 304 Part II IPC. (Para 29) 2024 LiveLaw (SC) 94

Penal Code, 1860 - Section 304 Part II is in two parts. The section provides for two kinds of punishment to two different situations: Firstly, if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here the important ingredient is the “intention”. Secondly, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. Here the important ingredient is “knowledge”. (Para 28) 2024 LiveLaw (SC) 94

Penal Code, 1860 - Section 376 AB - Punishment for rape on woman under twelve years of age - In the instant case, the petitioner-convict was aged 40 years on the date of occurrence and the victim was then only a girl, aged 7 years. Thus, the position is that he used a lass aged 7 years to satisfy his lust. For that the petitioner-convict took the victim to a temple, unmindful of the holiness of the place, disrobed her and himself and then committed the crime. We have no hesitation to hold that the fact he had not done it brutally will not make its commission non-barbaric. (Para 10) 2024 LiveLaw (SC) 87

Penal Code, 1860; Sections 406, 419, 420, 467, 468, 471 and 120B - On a reading of the FIR as well as the charge-sheet, we do not find that the offences aforestated is made out at all. We do not find any criminal breach of trust nor any cheating by impersonation. There is also no cheating and dishonestly inducing delivery of property, nor has any documents referred to any forgery or security or any forgery for the purpose of cheating. There is no reference to any document which has been forged so as to be used as a genuine document and much less is as there any criminal conspiracy which can be imputed to the appellants herein in the absence of any offence being made out vis-a-vis the aforesaid Sections. (Para 17) 2024 LiveLaw (SC) 96

Practice and Procedure

It will be appropriate if the Registry of this Court stops referring to the Trial Courts as 'Lower Courts'. Even the record of the Trial Court should not be referred to as Lower Court Record (LCR). Instead, it should be referred to as the Trial Court Record (TCR). The Registrar (Judicial) to take a note of this order. 2024 LiveLaw (SC) 103

The Registry should call for the soft copies of the records of the High Court and the Trial Court immediately after leave to appeal is granted in a petition challenging orders of conviction/acquittal. 2024 LiveLaw (SC) 105

Pre-emption 

Pre-emption Act, 1913 (Punjab); Section 16, 8(2) and 3(3) - 'Land' and 'Immovable property' are two different terms. As per Section 3(3), immovable property is more than the land on which certain construction has been made. Notification dated 08.10.1985 limits its application for taking away the right of pre-emption only with reference to sale of 'land' falling in the areas of any municipality. In the present case, it is sale of immovable property, which is more than the land as a rolling mill had already been set up on the land. Held, notification is not applicable to property in dispute. (Para 17) 2024 LiveLaw (SC) 95

Pre-emption Act, 1913 (Punjab); Section 8(2) - Notification issued in exercise of powers under Section 8(2) enables the State Government to exclude any transaction of sale of any land or property for exercise of right of pre-emption. Notification exempts right of pre-emption in respect of sale of land falling in the area of municipalities in Haryana. (Para 8) 2024 LiveLaw (SC) 95

SARFAESI Act

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; Principle underlying Sections 73 and 74 of the Indian Contract Act 1872 - that the compensation payable due to a breach of contract is limited to the losses suffered by the other party due to the breach - did not apply to an auction purchase under the SARFAESI Act. (Para 68) 2024 LiveLaw (SC) 85

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; the SARFAESI Act is a special legislation with an overriding effect on the general law more particularly the Indian Contract Act, 1872. (Para 68) 2024 LiveLaw (SC) 85

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; the underlying principle envisaged under Section(s) 73 & 74 of the 1872 Act which is a general law will have no application, when it comes to the SARFAESI Act more particularly the forfeiture of earnest-money deposit which has been statutorily provided under Rule 9(5) of the SARFAESI Rules as a consequence of the auction purchaser's failure to deposit the balance amount. (Para 68) 2024 LiveLaw (SC) 85

Security Interest (Enforcement) Rules, 2002; Rule 9 (5) - Consequence of forfeiture of 25% of the deposit under Rule 9(5) of the SARFAESI Rules is a legal consequence that has been statutorily provided in the event of default in payment of the balance amount. The consequence envisaged under Rule 9(5) follows irrespective of whether a subsequent sale takes place at a higher price or not, and this forfeiture is not subject to any recovery already made or to the extent of the debt owed. In such cases, no extent of equity can either substitute or dilute the statutory consequence of forfeiture of 25% of deposit under Rule 9(5) of the SARFAESI Rules. (Para 111) 2024 LiveLaw (SC) 85

Security Interest (Enforcement) Rules, 2002; Rule 9 (5) - Entire earnest money deposited by an auction purchaser would be forfeited as per Rule 9(5) of the SARFAESI Rules on the failure to deposit the remaining amount within the stipulated period. (Para 68) 2024 LiveLaw (SC) 85

Security Interest (Enforcement) Rules, 2002; Rule 9(5) of the SARFAESI Rules puts a mandatory requirement on the successful auction purchaser to deposit a 25% amount after the sale is confirmed by the secured creditor in favor of the auction purchaser. Moreover, the Rule makes it clear that in default of payment of the remaining 75% amount by the auction purchaser within the period mentioned in Rule 9(4) i.e., 15 days, the deposit shall be forfeited by the secured creditor and the auction purchaser would not be entitled to receive the 25% deposited earnest money. 2024 LiveLaw (SC) 85

Security Interest (Enforcement) Rules, 2002; Rule 9 (5) - Secured creditor's right to forfeit the earnest deposit amount by the auction purchaser doesn't arise due to loss or damage suffered due to a breach of contract but under a statutory requirement mentioned under SARFAESI Rules. (Para 111) 2024 LiveLaw (SC) 85

Unlawful Activities (Prevention) Act, 1967

Unlawful Activities (Prevention) Act, 1967; Section 43D(5) and Code of Criminal Procedure, 1973; Section 439 – Section 43D(5) of the UAP Act modifies the application of the general bail provisions in respect of offences punishable under Chapter IV and Chapter VI of the UAP Act. Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the 'final report' or 'Case Diary', the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied, that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence). The restrictions, on granting of bail in section 43D(5) are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail. The conventional idea in bail jurisprudence 'bail is the rule, jail is the exception' does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D(5) - 'shall not be released', in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released', suggests the intention of the Legislature to make bail, the exception and jail, the rule. (Para 17, 18 & 20) 2024 LiveLaw (SC) 100

Words and Phrases

When the words 'barbaric' and 'brutal' are used simultaneously they are not to take the character of synonyms, but to take distinctive meanings. (Para 10) 2024 LiveLaw (SC) 87 : 2024 INSC 82