Supreme Court Monthly Digest With Nominal And Statute/Subject Wise Index- June 2022

Ancient Monuments and Archaeological Sites and Remains Act, 1958; Sections 20A, 20C, 20D - When sub­section (4) of Section 20A of the said Act is read in harmony with clause (dc) of Section 2 and the provisions of Sections 20C and 20D of the said Act, we find that the submission that no construction at all can be made in the prohibited area or the regulated area, would be unsustainable. (Para 41) Ardhendu Kumar Das v. State of Odisha, 2022 LiveLaw (SC) 539

Ancient Monuments and Archaeological Sites and Remains Act, 1958; Section 2(dc) - Definition of "Construction" - The legislative intent is clear that the re­construction,repair, renovation of the existing buildings has been excluded from the definition. Similarly, the construction, maintenance etc. of drains, drainage works, public latrines and urinals; the construction and maintenance of works meant for providing supply of water to public; and construction etc. for distribution of electricity, which could be construed to be essential services for catering to the needs of the public at large, have consciously been kept out of the definition of "construction". (Para 41, 42) Ardhendu Kumar Das v. State of Odisha, 2022 LiveLaw (SC) 539

Child Custody - Income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance in custody matters - One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson - Grand Parents are more attached emotionally with grandchildren. (Para 7.2) Swaminathan Kunchu Acharya v. State of Gujarat, 2022 LiveLaw (SC) 547

Code of Civil Procedure, 1908; Order XX Rule 18 - Partition Suits - Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings - The courts should not adjourn the matter sine die. (Para 32-34) Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 LiveLaw (SC) 549

Code of Civil Procedure, 1908; Order XX Rule 18 - Partition Suits - The distinction between preliminary and final decree - A preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in preliminary decree and after the inquiry having been conducted and rights of the parties being finally determined, a final decree incorporating such determination needs to be drawn up. (Para 29-30) Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 LiveLaw (SC) 549

Code of Civil Procedure, 1908; Order XX Rule 18 - Partition Suits - Final decree proceedings can be initiated at any point of time. There is no limitation for initiating final decree proceedings. Either of the parties to the suit can move an application for preparation of a final decree and, any of the defendants can also move application for the purpose. By mere passing of a preliminary decree the suit is not disposed of. Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 LiveLaw (SC) 549

Code of Criminal Procedure 1973; Section 311 - Merely because a different statement given by the same prosecution witness in another case that itself would not be a reason for recalling the witness. Saud Faisal v. State of Uttar Pradesh, 2022 LiveLaw (SC) 556

Code of Criminal Procedure 1973; Section 482 - While exercising jurisdiction under Section 482 of the Cr.P.C., the High Court should not ordinarily embark upon an enquiry into whether there is reliable evidence or not. The jurisdiction has to be exercised sparingly, carefully and with caution only when such exercise is justified by the specific provisions of Section 482 of the Cr.P.C. itself. Jagmohan Singh v. Vimlesh Kumar, 2022 LiveLaw (SC) 546

Code of Criminal Procedure 1978; Section 438 - Anticipatory Bail - Court is expected to pass orders in one way or other taking into account the merits of the matter at the earliest - Posting an application for anticipatory bail after a couple of months cannot be appreciated - Matter involves personal liberty. Sanjay v. State (NCT of Delhi), 2022 LiveLaw (SC) 555

Code of Criminal Procedure, 1973; Section 220(1) - trial for more than one offence - if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence - it is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction - the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the factors for deciding whether certain acts form parts of the same transaction or not - a series of acts whether are so connected together as to form the same transaction is purely a question of fact to be decided on the aforesaid criteria. - for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. [Para 20.1 - 20.3] Ms. P XXX v. State of Uttarakhand, 2022 LiveLaw (SC) 554

Constitution of India, 1950; Article 20(2) - Code of Criminal Procedure, 1973; Section 300 - Principle of Double Jeopardy - The accused-respondent No. 2 having gone through the trial in relation to offences under Sections 504 and 506 IPC and having been acquitted, cannot be subjected to another trial for the same charges on the same facts. Any such process would be in blatant disregard of the settled principles which disapprove double jeopardy and are precisely contained in Article 20(2) of the Constitution of India as also Section 300 of the Code of Criminal Procedure, 1973. Ms. P XXX v. State of Uttarakhand, 2022 LiveLaw (SC) 554

Constitution of India, 1950; Article 22 - Preventive Detention - the powers to be exercised under this law are exceptional powers which have been given to the government for its exercise in an exceptional situation -A law and order situation can be dealt with under the ordinary law of land. (Para 12 & 13) Shaik Nazneen v. State of Telangana, 2022 LiveLaw (SC) 559

Constitution of India, 1950; Article 226 - Tender - High Court dismissed WPs challenging acceptance of tender following observations made in M/s N. G. Projects Ltd. Vs. M/s Vinod Kumar Jain and others, 2022 LiveLaw (SC) 302 - Appeal allowed - High court has totally misread the Judgment - Respondent was declared eligible in a flagrant violation of principles of natural justice and all fairness in the process of determining the eligibility of the tenderers. Jai Bholenath Construction v. Chief Executive Officer, Zilla Parishad Nanded, 2022 LiveLaw (SC) 542

Constitution of India, 1950; Article 356 - Breakdown of Constitutional machinery - Law & Order - Gujarat Riots case - Breakdown of law-and-order situation if for short duration,cannot partake the colour of breakdown of rule of law or constitutional crisis. To put it differently, misgovernance or failure to maintain law-and-order during a brief period may not be a case of failure of constitutional machinery in the context of tenets embodied in Article 356 of the Constitution-There must be credible evidence regarding State sponsored breakdown of law-and-order situation; not spontaneous or isolated instances or events of failure of State administration to control the situation. (Para 45) Zakia Ahsan Jafri v. State of Gujarat, 2022 LiveLaw (SC) 558

Constitution of India; Article 226 - When a remedy under the statute is available filing of a writ petition under Article 226 of the Constitution is to be discouraged by the High Court. Kotak Mahindra Bank v Dilip Bhosale, 2022 LiveLaw (SC) 545

Consumer Protection Act, 1986 - Appeal against NCDRC order refusing to condone delay of 67 days in filing the revision- Allowed and delay condoned- Delay in filing the revision was not huge, that should not have been condoned- The question of limitation is not to be examined with a view to decline the condonation, but to do substantial justice. Manager, Indusind Bank v. Sanjay Ghosh, 2022 LiveLaw (SC) 550

Control of Terrorism and Organized Crime Act, 2015 (Gujarat) - To invoke this Act in respect of such an activity more than one charge-sheet must have been filed before a competent Court in the preceding ten years- Bail granted to accused as only one chargesheet has been filed against him. Mohamad Iliyas Mohamad Bilal Kapadiya v. State of Gujarat, 2022 LiveLaw (SC) 538

Court-fees Act, 1870; Section 7(iv)(d) - the market value does not become decisive of suit valuation merely because an immovable property is the subject-matter of litigation - the market value of the immovable property involved in the litigation might have its relevance depending on the nature of relief claimed but, ultimately, the valuation of any particular suit has to be decided primarily with reference to the relief/reliefs claimed - It is unquestionable principle of law that a suit for mandatory and prohibitory injunction is not required to be valued at the market value of the property. [Para 9.1 & 10] Bharat Bhushan Gupta v. Pratap Narain Verma, 2022 LiveLaw (SC) 552

Criminal Trial - Motive - Only because the motive is established, the conviction cannot be sustained. (Para 23) Mahendra Singh v. State of M.P., 2022 LiveLaw (SC) 543

Criminal Trial - The same treatment is required to be given to the defence witness(es) as is to be given to the prosecution witness(es). (Para 20) Mahendra Singh v. State of M.P., 2022 LiveLaw (SC) 543

Criminal Trial - Witnesses are of three types, viz., (a) wholly reliable; (b) wholly unreliable; and (c) neither wholly reliable nor wholly unreliable. When the witness is "wholly reliable", the Court should not have any difficulty inasmuch as conviction or acquittal could be based on the testimony of such single witness. Equally, if the Court finds that the witness is "wholly unreliable", neither conviction nor acquittal can be based on the testimony of such a witness. It is only in the third category of witnesses that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. Mahendra Singh v. State of M.P., 2022 LiveLaw (SC) 543

Death Sentence - Death sentence being awarded and maintained only in extreme cases, does not mean that the matter would be approached and examined in the manner that death sentence has be avoided, even if the matter indeed calls for such a punishment - The pursuit in collecting mitigating circumstances could also not be taken up with any notion or idea that somehow, some factor be found; or if not found, be deduced anyhow so that the sentence of death be forsaken - It has never been the effort of the Courts to somehow make this punishment (sentence of death) redundant and non-existent for all practical purposes. (Para 54) Manoj Pratap Singh v. State of Rajasthan, 2022 LiveLaw (SC) 557

Death Sentence - Death sentenced imposed on man for rape and murder of 8 year old mentally and physically challenged girl upheld- The crime had been of extreme depravity, which shocks the conscience, particularly looking to the target (a seven-and-a-half-year old mentally and physically challenged girl) and then, looking to the manner of committing murder, where the hapless victim's head was literally smashed, resulting in multiple injuries including fracture of frontal bone - No probability of reformation and has criminal antecedents and also involved in crimes in jail post-conviction - There is absolutely no reason to commute the sentence of death to any other sentence of lesser degree. (Para 58) Manoj Pratap Singh v. State of Rajasthan, 2022 LiveLaw (SC) 557

Death Sentence - There cannot be any universal formula for calling for a psychological evaluation report to determine whether the accused could be reformed or rehabilitated. (Para 56.1) Manoj Pratap Singh v. State of Rajasthan, 2022 LiveLaw (SC) 557

Death Sentence -The theory of residual doubt - After the final conclusion on the guilt and after pronouncing conviction, no concept of residual doubt as such is available for the purpose of sentencing. (Para 48 - 49) Manoj Pratap Singh v. State of Rajasthan, 2022 LiveLaw (SC) 557

Environment (Protection) Act 1986; Section 3 - Guidelines issued by the Union Ministry on February 9 2011 for Ecologically Sensitive Zones near protected forests held to be reasonable - Further directions issued in relation to ESZ -No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ - Mining within the national parks and wildlife sanctuaries shall not be permitted. (Para 44) In Re : TN Godavarman Thirumalpad v. Union of India, 2022 LiveLaw (SC) 540

Environmental Law - Public Trust Doctrine - Public Trust Doctrine is part of the law of land - The role of the State cannot be confined to that of a facilitator or generator of economic activities for immediate upliftment of the fortunes of the State. The State also has to act as a trustee for the benefit of the general public in relation to the natural resources so that sustainable development can be achieved in the long term. Such role of the State is more relevant today, than, possibly, at any point of time in history with the threat of climate catastrophe resulting from global warming looming large. (Para 28) In Re : TN Godavarman Thirumalpad v. Union of India, 2022 LiveLaw (SC) 540

Environmental Law - Sustainable Development - Need to strike a balance between the development and the environmental issues - Though development is necessary for economical progress of the nation, it is equally necessary to safeguard the environment so as to preserve pollution free environment and ecology for the future generations to come. (Para 16) State of Andhra Pradesh v. Raghu Rama Krishna Raju Kanumuru (MP), 2022 LiveLaw (SC) 544

Evidence Act, 1872; Section 114 - If a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place. (Para 15 -20) Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 LiveLaw (SC) 549

Gujarat Riots 2002 - Plea for probe into alleged larger conspiracy by high state functionaries dismissed- Upholds SIT's closure report exonerating Narendra Modi and 63 other high officials - Held, Conspiracy cannot be readily inferred merely on the basis of the inaction or failure of the State administration -inaction or failure of some officials of one section of the State administration cannot be the basis to infer a pre- planned criminal conspiracy by the authorities of the State Government or to term it as a State sponsored crime (violence) against the minority community. (Para 44 - 47) Zakia Ahsan Jafri v. State of Gujarat, 2022 LiveLaw (SC) 558

Insolvency and Bankruptcy Code, 2016; Section 12A - When 90% and more of the creditors, in their wisdom after due deliberations, find that it will be in the interest of all the stake­holders to permit settlement and withdraw CIRP, in our view, the adjudicating authority or the appellate authority cannot sit in an appeal over the commercial wisdom of CoC. The interference would be warranted only when the adjudicating authority or the appellate authority finds the decision of the CoC to be wholly capricious, arbitrary, irrational and de hors the provisions of the statute or the Rules. (Para 24) Vallal Rck v. M/s. Siva Industries and Holdings Ltd; 2022 LiveLaw (SC) 541

Interpretation of Statutes - It is a settled principle of law that all the provisions in the statute have to be read harmoniously. It is presumed that each and every provision has been brought by the legislature into the statute book with some purpose. A particular provision cannot be read in isolation and has to be read in context to each other. An attempt has to be made to reconcile all the provisions of the statute together, unless it is impossible. (Para 40) Ardhendu Kumar Das v. State of Odisha, 2022 LiveLaw (SC) 539

Judicial Service - Inter-se seniority for Munsiffs appointed by way of direct recruitment on the recommendation of the State Public Service Commission is to be determined on the basis of their inter-se merit at the time of selection and not roster points. Manoj Parihar v. State of Jammu and Kashmir, 2022 LiveLaw (SC) 560

NEET-PG 2021 - The decision of the Union Government and the Medical Counselling Committee not to have Special Stray Round of counselling is in the interest of Medical Education and Public Health. There cannot be any compromise with the merits and/or quality of Medical Education, which may ultimately affect the Public Health. (Para 10.4) Astha Goel v. Medical Counselling Committee, 2022 LiveLaw (SC) 548

Penal Code 1860; Section 120B - Criminal Conspiracy - To make out a case of larger criminal conspiracy, it is essential to establish a link indicative of meeting of minds of the concerned persons for commission of the crime(s). (Para 44) Zakia Ahsan Jafri v. State of Gujarat, 2022 LiveLaw (SC) 558

Penal Code, 1860; Section 96-106 - Right of Private Defence - Accused need not prove the existence of private self-defence beyond reasonable doubt and that it would suffice if he could show that the preponderance of probabilities is in favour of his plea, just as in a civil case. (Para 12) Ex.Ct. Mahadev v. Director General, Border Security Force, 2022 LiveLaw (SC) 551

Penal Code, 1860; Section 96-106 - Right of Private Defence - The right of private defence is necessarily a defensive right which is available only when the circumstances so justify it. The circumstances are those that have been elaborated in the IPC. Such a right would be available to the accused when he or his property is faced with a danger and there is little scope of the State machinery coming to his aid. At the same time, the courts must keep in mind that the extent of the violence used by the accused for defending himself or his property should be in proportion to the injury apprehended. This is not to say that a step to step analysis of the injury that was apprehended and the violence used is required to be undertaken by the Court; nor is it feasible to prescribe specific parameters for determining whether the steps taken by the accused to invoke private self-defence and the extent of force used by him was proper or not. The Court's assessment would be guided by several circumstances including the position on the spot at the relevant point in time, the nature of apprehension in the mind of the accused, the kind of situation that the accused was seeking to ward off, the confusion created by the situation that had suddenly cropped up resulting the in knee jerk reaction of the accused, the nature of the overt acts of the party who had threatened the accused resulting in his resorting to immediate action, etc. The underlying factor should be that such an act of private defence should have been done in good faith and without malice. Ex.Ct. Mahadev v. Director General, Border Security Force, 2022 LiveLaw (SC) 551

Principle of Estoppel & Acquiescence - It is settled principle that principle of estoppel cannot override the law. The manual duly approved by the Executive Council will prevail over any such principle of estoppel or acquiescence- there can be no estoppel against law. If the law requires something to be done in a particular manner, then it must be done in that manner, and if it is not done in that manner, then it would have no existence in the eye of the law. (Para 23) Krishna Rai v. Benarus Hindu University, 2022 LiveLaw (SC) 553

Public Interest Litigation - Frivolous PILs should be nipped in the bud - In the recent past, it is noticed that there is mushroom growth of public interest litigations. However, in many of such petitions, there is no public interest involved at all. The petitions are either publicity interest litigations or personal interest litigation. We highly deprecate practice of filing such frivolous petitions. They are nothing but abuse of process of law. They encroach upon a valuable judicial time which could be otherwise utilized for considering genuine issues. It is high time that such so­called public interest litigations are nipped in the bud so that the developmental activities in the larger public interest are not stalled. (Para 59) Ardhendu Kumar Das v. State of Odisha, 2022 LiveLaw (SC) 539

Public Order & Law and order - Distinction - The distinction between law and order situation and a public order situation has been dealt with by the Supreme Court in a catena of decisions. (Para 15) Shaik Nazneen v. State of Telangana, 2022 LiveLaw (SC) 559

Service Law - Pension - Pension is a continuous cause of action - No justification in denying the arrears of pension on ground of delay. M.L. Patil v. State of Goa, 2022 LiveLaw (SC) 537

Service Law - Selection process held in violation of service rules-High Court division bench applies principle of estoppel to reject challenge - Supreme Court sets aside the HC verdict. Krishna Rai v. Benarus Hindu University, 2022 LiveLaw (SC) 553

Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders, Land Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act ,1986; Section 3(1) - A bare reading of the aforesaid provision shows that the "maintenance of public order" has a crucial bearing here and unless the government is justified in holding that the act of the detenu is prejudicial to the maintenance of public order, the preventive detention would be bad and would be in violation of Articles 21 and 22 of the Constitution of India as it encroaches upon the liberty and freedom of an individual. (Para 9) Shaik Nazneen v. State of Telangana, 2022 LiveLaw (SC) 559

Tribunals - National Green Tribunal - Tribunals would be subordinate to the High Court insofar as the territorial jurisdiction of the High Court is concerned- The conflicting orders passed by the NGT and the High Court would lead to an anomalous situation, where the authorities would be faced with a difficulty as to which order they are required to follow. There can be no manner of doubt that in such a situation, it is the orders passed by the constitutional courts, which would be prevailing over the orders passed by the statutory tribunals. (Para 11) State of Andhra Pradesh v. Raghu Rama Krishna Raju Kanumuru (MP), 2022 LiveLaw (SC) 544

NOMINAL INDEX

1. Ardhendu Kumar Das v. State of Odisha, 2022 LiveLaw (SC) 539
2. Astha Goel v. Medical Counselling Committee, 2022 LiveLaw (SC) 548
3. Bharat Bhushan Gupta v. Pratap Narain Verma, 2022 LiveLaw (SC) 552
4. Ex.Ct. Mahadev v. Director General, Border Security Force, 2022 LiveLaw (SC) 551
5. In Re : TN Godavarman Thirumalpad v. Union of India, 2022 LiveLaw (SC) 540
6. Jagmohan Singh v. Vimlesh Kumar, 2022 LiveLaw (SC) 546
7. Jai Bholenath Construction v. Chief Executive Officer, Zilla Parishad Nanded, 2022 LiveLaw (SC) 542
8. Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 LiveLaw (SC) 549
9. Kotak Mahindra Bank v Dilip Bhosale, 2022 LiveLaw (SC) 545
10. Krishna Rai v. Benarus Hindu University, 2022 LiveLaw (SC) 553
11. M.L. Patil v. State of Goa, 2022 LiveLaw (SC) 537
12. Mahendra Singh v. State of M.P., 2022 LiveLaw (SC) 543]
13. Manager, Indusind Bank v. Sanjay Ghosh, 2022 LiveLaw (SC) 550
14. Manoj Parihar v. State of Jammu and Kashmir, 2022 LiveLaw (SC) 560
15. Manoj Pratap Singh v. State of Rajasthan, 2022 LiveLaw (SC) 557
16. Mohamad Iliyas Mohamad Bilal Kapadiya v. State of Gujarat, 2022 LiveLaw (SC) 538
17. Ms. P XXX v. State of Uttarakhand, 2022 LiveLaw (SC) 554
18. Sanjay v. State (NCT of Delhi), 2022 LiveLaw (SC) 555
19. Saud Faisal v. State of Uttar Pradesh, 2022 LiveLaw (SC) 556
20. Shaik Nazneen v. State of Telangana, 2022 LiveLaw (SC) 559
21. State of Andhra Pradesh v. Raghu Rama Krishna Raju Kanumuru (MP), 2022 LiveLaw (SC) 544
22. Swaminathan Kunchu Acharya v. State of Gujarat, 2022 LiveLaw (SC) 547
23. Vallal Rck v. M/s. Siva Industries and Holdings Ltd; 2022 LiveLaw (SC) 541
24. Zakia Ahsan Jafri v. State of Gujarat, 2022 LiveLaw (SC) 558