Supreme Court Weekly Digest With Nominal And Subject Index [December 12 – 18, 2022]

Code of Civil Procedure, 1908; Order XXI - The mere dismissal of the first application on the ground of default may not result in the decree holder being precluded from filing a fresh execution petition provided it is within time. (Para 21) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020

Code of Civil Procedure, 1908; Order XXI Rules 46, 46A - Execution Court should have first attached the debt under Order 21 Rule 46 before proceeding to pass the order under Order 21 Rule 46A - Order 21 Rule 46A in the case of debt must be understood as a debt spoken of in Order 21 Rule 46 of CPC and the debt must have been attached under Order 21 Rule 46 - Order 21 Rule 46A excepts, debt secured by a mortgage or a charge. Once these conditions are fulfilled, then upon an application being made by the 'attaching creditor' a notice may be issued to the garnishee. (Para 27- 28) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020

Code of Civil Procedure, 1908; Order XXI Rules 46, 46A - The exception is in regard to 'such other property' which though not in the possession of the judgment debtor, is property deposited or is in the custody of any Court - In regard to such property Order 21 Rule 46 and therefore Order 21 Rule 46A will not apply. (Para 25) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020

Code of Civil Procedure, 1908; Sections 38, 39 - For the effective working of Section 39 of CPC, in other words, there must be a Court which has passed a decree - When Sections 38 and 39 of the CPC are not as such applicable, the decree holder may seek to execute the decree in any Court which otherwise has jurisdiction. (Para 24) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020

Code of Criminal Procedure, 1973; Chapter XVII - Objects of provisions regarding framing of charge - To make the accused aware of the accusations against him on the basis of which the prosecution is seeking to convict him - Accused should be in a position to effectively defend himself. An accused can properly defend himself provided he is clearly informed about the nature of the allegations against him before the actual trial starts. (Para 16-17) Kalicharan v. State of Uttar Pradesh, 2022 LiveLaw (SC) 1027

Code of Criminal Procedure, 1973; Section 190, 200 - The second complaint can be maintainable in exceptional circumstances, depending upon the manner in which the first complaint came to be dismissed. To say it differently, if the first complaint was dismissed without venturing into the merits of the case or on a technical ground and/or by returning a reasoning which can be termed as perverse or absurd in law, and/or when the essential foundation of second complaint is based upon such set of facts which were either not in existence at the time when the first complaint was filed or the complainant could not have possibly lay his hands to such facts at that time, an exception can be made to entertain the second complaint. (Para 14) B.R.K Aathithan v. Sun Group, 2022 LiveLaw (SC) 1022

Code of Criminal Procedure, 1973; Section 204 - The application of judicial mind and arriving at an erroneous conclusion are two distinct things. The Court even after due application of mind may reach to an erroneous conclusion and such an order is always justiciable before a superior Court. Even if the said Order is set aside, it does not mean that the trial court did not apply its mind. (Para 16) B.R.K Aathithan v. Sun Group, 2022 LiveLaw (SC) 1022

Code of Criminal Procedure, 1973; Section 313 - Questioning an accused under Section 313 CrPC is not an empty formality - Accused must be explained the circumstances appearing in the evidence against him so that accused can offer an explanation. After an accused is questioned under Section 313 CrPC, he is entitled to take a call on the question of examining defence witnesses and leading other evidence. If the accused is not explained the important circumstances appearing against him in the evidence on which his conviction is sought to be based, the accused will not be in a position to explain the said circumstances brought on record against him. (Para 22) Kalicharan v. State of Uttar Pradesh, 2022 LiveLaw (SC) 1027

Code of Criminal Procedure, 1973; Section 427 - Supreme Court orders that sentences in nine cases against an appellant for theft of electricity shall run concurrently- The Court notes that serious miscarriage will be caused if the appellant is to serve 18 years of sentence for these offences. Iqram v. State of Uttar Pradesh, 2022 LiveLaw (SC) 1032

Code of Criminal Procedure, 1973; Section 482 - Complainant alleged that his signature on a sale deed has been forged - Later filed civil suit seeking cancellation of sale deed - High Court refused to quash the complaint - While allowing the appeal, the Supreme Court said : A complaint disclosing civil transaction may also have a criminal texture. But the High Court must see whether the dispute which is in substance of a civil nature is given a cloak of a criminal offence. In such a situation, if civil remedy is available and is in fact adopted, the High Court should have quashed the criminal proceeding to prevent abuse of process of court - This order (1) will not come in the way of instituting appropriate proceedings in future in case the Civil Court comes to the conclusion that the disputed sale deed is forged (2) shall not be cited as a precedent. R. Nagender Yadav v. State of Telangana, 2022 LiveLaw (SC) 1030

Code of Criminal Procedure, 1973; Section 482 - Drugs and Cosmetics Act, 1940 - No explanation for the extraordinary delay of more than four years between the initial site inspection, the show cause notice, and the complaint - While inordinate delay in itself may not be ground for quashing of a criminal complaint, unexplained inordinate delay of such length must be taken into consideration as a very crucial factor as grounds for quashing a criminal complaint - While the court does not expect a full-blown investigation at the stage of a criminal complaint, however, in such cases where the accused has been subjected to the anxiety of a potential initiation of criminal proceedings for such a length of time, it is only reasonable for the court to expect bare-minimum evidence from the Investigating Authorities. (Para 24-26) Hasmukhlal D. Vora v. State of Tamil Nadu, 2022 LiveLaw (SC) 1033

Code of Criminal Procedure, 1973; Section 482 - Perfunctory investigation cannot be a ground either to quash the criminal proceedings or even to acquit the accused. (Para 14) R. Nagender Yadav v. State of Telangana, 2022 LiveLaw (SC) 1030

Code of Criminal Procedure, 1973; Section 482 - The court can exercise its powers to quash a criminal complaint, provided that the evidence adduced is clearly inconsistent with the accusations made, or no legal evidence has been presented - For the quashing of a criminal complaint, the Court, when it exercises its power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the complaint disclose the commission of a cognizable offence - Broad guidelines for quashing a criminal complaint. Hasmukhlal D. Vora v. State of Tamil Nadu, 2022 LiveLaw (SC) 1033

Code of Criminal Procedure, 1973; Section 482 - While exercising its jurisdiction under Section 482 of the Cr.P.C., the High Court has to be conscious that this power is to be exercised sparingly and only for the purpose of prevention of abuse of the process of the court or otherwise to secure the ends of justice. Whether a complaint discloses a criminal offence or not, depends upon the nature of the act alleged thereunder. (Para 16) R. Nagender Yadav v. State of Telangana, 2022 LiveLaw (SC) 1030

Code of Criminal Procedure, 1973; Section 482 - While it is true that the quashing of a criminal complaint must be done only in the rarest of rare cases, it is still the duty of the High Court to look into each and every case with great detail to prevent miscarriage of justice - Courts, as protectors of the law and servants of the law, must always ensure that frivolous cases do not pervert the sacrosanct nature of the law. (Para 28) Hasmukhlal D. Vora v. State of Tamil Nadu, 2022 LiveLaw (SC) 1033

Code of Criminal Procedure, 1973; Sections 215 and 464 - When the Court of appeal is called upon to decide whether any failure of justice has been occasioned due to omission to frame a charge or error in the charge, the Court is duty bound to examine the entire record of the trial including all exhibited documents, depositions and the statements of the accused recorded under Section 313. (Para 20) Kalicharan v. State of Uttar Pradesh, 2022 LiveLaw (SC) 1027

Code of Criminal Procedure, 1973; Sections 227, 228 - The stage of discharge under Section 227 Cr.P.C. is a stage prior to framing of the charge (under Section 228 Cr.P.C.) - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so. As per Section 228 Cr.P.C. only thereafter and if, after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, the trial Court shall frame the charge. (Para 7) Chandi Puliya v. State of West Bengal, 2022 LiveLaw (SC) 1019

Code of Criminal Procedure, 1973; Sections 227, 228, 300 - It is at the stage of discharge that the court can consider the application under Section 300 Cr.P.C - Once the court rejects the discharge application, it would proceed to framing of charge under Section 228 Cr.P.C. (Para 7-8) Chandi Puliya v. State of West Bengal, 2022 LiveLaw (SC) 1019

Constitution of India, 1950; Article 136 - A pure question of law may be permitted to be raised in an appeal generated by the grant of special leave. (Para 22) Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020

Constitution of India, 1950; Article 21 - Supreme Court's duty to protect personal liberty - No case is too small for the Court -The history of this Court indicates that it is in the seemingly small and routine matters involving grievances of citizens that issues of moment, both in jurisprudential and constitutional terms, emerge. The intervention by this Court to protect the liberty of citizens is hence founded on sound constitutional principles embodied in Part III of the Constitution. The Court is entrusted with judicial powers under Article 32 and Article 136 of the Constitution of India. The right to personal liberty is a precious and inalienable right recognised by the Constitution. In attending to such grievances, the Supreme Court performs a plain constitutional duty, obligation and function; no more and no less. Iqram v. State of Uttar Pradesh, 2022 LiveLaw (SC) 1032

Constitution of India, 1950; Articles 226 - Code of Criminal Procedure, 1973; Section 482 - High Court does not have the power even under Articles 226 or Section 482 CrPC to direct the investigation to be conducted in a particular manner. State of West Bengal v. Sandip Biswas, 2022 LiveLaw (SC) 1024

Contract Act, 1872; Section 74 - All pre­estimated amounts which are specified to be paid on account of breach by any party under a contract are covered by Section 74 of Contract Act - In a scenario where the contractual terms clearly provide the factum of the pre estimate amount being in the nature of 'earnest money', the onus to prove that the same was 'penal' in nature squarely lies on the party seeking refund of the same. Failure to discharge such burden would treat any pre­estimated amount stipulated in the contract as a 'genuine pre­estimate of loss'. (Para 35) Desh Raj v. Rohtash Singh, 2022 LiveLaw (SC) 1026

Control of Terrorism and Organised Crime Act, 2015 (Gujarat) - Control of Organised Crime Act, 1999 (Maharashtra) - Where a person commits no unlawful activity after the invocation of the MCOCA. In such circumstances, the person cannot be arrested under the said Act on account of the offences committed by him before coming into force of the said Act, even if, he is found guilty of the same. However, if the person continues with the unlawful activities and is arrested, after the promulgation of the said Act, then, such person can be tried for the offence under the said Act. If a person ceases to indulge in any unlawful act after the said Act, then, he is absolved of the prosecution under the said Act. But, if he continues with the unlawful activity, it cannot be said that the State has to wait till, he commits two acts of which cognizance is taken by the Court after coming into force. The same principle would apply, even in the case of the 2015 Act. (Para 51) State of Gujarat v. Sandip Omprakash Gupta, 2022 LiveLaw (SC) 1031

Control of Terrorism and Organised Crime Act, 2015 (Gujarat); Section 3 - The offence of 'organised crime' could be said to have been constituted by at least one instance of continuation, apart from continuing unlawful activity evidenced by more than one chargesheets in the preceding ten years. (Para 51) State of Gujarat v. Sandip Omprakash Gupta, 2022 LiveLaw (SC) 1031

Criminal Trial - Circumstantial Evidence - Suspicion, howsoever strong, cannot substitute proof beyond reasonable doubt - There is not only a grammatical but also a legal distinction between 'may' and 'must'. For proving a case based on circumstantial evidence, it is necessary for the prosecution to establish each and every circumstance beyond reasonable doubt, and further, that the circumstances so proved must form a complete chain of evidence so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show, in all human probability, that the act has been done by the accused - The facts so established must exclude every hypothesis except the guilt of the accused. Ram Pratap v. State of Haryana, 2022 LiveLaw (SC) 1025

Delegated Legislation - Delegated legislation should not travel beyond the purview of the parent Act. If it does, it is ultra vires and cannot be given any effect -Rules or regulation cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinating legislative functions, or, what is fictionally called, a power to fill up details - Fine distinction between a rule and regulation and also the power of the delegate authority to frame such rules or regulation - (Para 64-81) Kerala State Electricity Board v. Thomas Joseph @ Thomas M.J., 2022 LiveLaw (SC) 1034

Doctrine of Ultra Vires - Ultra vires may arise in several ways; there may be simple excess of power over what is conferred by the parent Act; delegated legislation may be inconsistent with the provisions of the parent Act or statute law or the general law; there may be noncompliance with the procedural requirement as laid down in the parent Act. It is the function of the courts to keep all authorities within the confines of the law by supplying the doctrine of ultra vires. (Para 65) Kerala State Electricity Board v. Thomas Joseph @ Thomas M.J., 2022 LiveLaw (SC) 1034

Electricity Act, 2013; Section 126 - Electricity Supply Code, 2014 (Kerala); Regulation 153(15) - Regulation 153(15) of the Code 2014 is declared to be invalid being inconsistent with the provision of Section 126. (Para 82, 89) Kerala State Electricity Board v. Thomas Joseph @ Thomas M.J., 2022 LiveLaw (SC) 1034

Electricity Act, 2013; Section 126(6) - Consumption of electricity in excess of the connected load/contracted load would amount to 'unauthorised use of electricity' under explanation (b) to Section 126(6). (Para 54-58) Kerala State Electricity Board v. Thomas Joseph @ Thomas M.J., 2022 LiveLaw (SC) 1034

Evidence Act 1872; Section 154 - the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence. (Para 67) Neeraj Dutta v. State (GNCTD), 2022 LiveLaw (SC) 1029

Hindu Marriage Act, 1955; Section 9, 26 - Orders giving visitation rights or temporary child custody cannot be passed in a proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights - A separate and independent petition under Section 26 has to be filed. Priyanka v. Santoshkumar, 2022 LiveLaw (SC) 1021

Interpretation of Statutes - Strict Interpretation - Substantive law should be construed strictly so as to give effect and protection to the substantive rights unless the statute otherwise intends. Strict construction is one which limits the application of the statute by the words used - The basic rule of strict construction of a penal statute is that a person cannot be penalised without a clear letter of the law. Presumptions or assumptions have no role in the interpretation of penal statutes - They are to be construed strictly in accordance with the provisions of law. Nothing can be implied. In such cases, the courts are not so much concerned with what might possibly have been intended. Instead, they are concerned with what has actually been said. (Para 46-47) State of Gujarat v. Sandip Omprakash Gupta, 2022 LiveLaw (SC) 1031

Penal Code, 1860 ; Section 499, 500 - First defamation complaint dismissed by Magistrate observing that there is no prima facie case as it falls under fourth exception - Revision petition before HC filed was withdrawn - Second complaint filed before Magistrate with same set of facts - High Court quashed the complaint - While dismissing appeal, the Supreme Court observed: Even if the order of Judicial Magistrate while dismissing the first complaint was erroneous in law, it does not amount to non­application of mind by the trial court. B.R.K Aathithan v. Sun Group, 2022 LiveLaw (SC) 1022

Penal Code, 1860; Section 34 - Co-perpetrator, who had participated in the offence, equally liable on the principle of joint liability. For Section 34 to apply, there should be common intention among the co-perpetrators, which means that there should be community of purpose and common design. Common intention can be formed at the spur of the moment and during the occurrence itself. Common intention is necessarily a psychological fact and as such, direct evidence normally will not be available. Therefore, in most cases, whether or not there exists a common intention, has to be determined by drawing inference from the facts proved. Constructive intention, can be arrived at only when the court can hold that the accused must have preconceived the result that ensued in furtherance of the common intention. State of Rajasthan v. Gurbachan Singh, 2022 LiveLaw (SC) 1028

Prevention of Corruption Act, 1988 - Constitution Bench answers reference on whether circumstantial evidence can be used to prove demand of illegal gratification- In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution. (Para 70) Neeraj Dutta v. State (GNCTD), 2022 LiveLaw (SC) 1029

Prevention of Corruption Act, 1988 - In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (Para 68) Neeraj Dutta v. State (GNCTD), 2022 LiveLaw (SC) 1029

Prevention of Corruption Act, 1988 - In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. Neeraj Dutta v. State (GNCTD), 2022 LiveLaw (SC) 1029

Prevention of Corruption Act, 1988 - the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act. (Para 68) Neeraj Dutta v. State (GNCTD), 2022 LiveLaw (SC) 1029

Service Law - A candidate who has participated in the selection process adopted is estopped and has acquiesced himself from questioning it. (Para 21) State of Uttar Pradesh v. Karunesh Kumar, 2022 LiveLaw (SC) 1035

Service Law - Once the appointment is held to be illegal and void ab initio the services rendered cannot be considered / counted for the purpose of pension. Dr. Rajasree M.S. v. Professor (Dr) Sreejith PS,, 2022 LiveLaw (SC) 1023

Service Law - Principle governing changing the rules of game would not have any application when the change is with respect to the selection process but not the qualification or eligibility-In other words, after the advertisement is made followed by an application by a candidate with further progress, a rule cannot be brought in, disqualifying him to participate in the selection process. It is only in such cases, the principle aforesaid will have an application or else it will hamper the power of the employer to recruit a person suitable for a job. (Para 32) State of Uttar Pradesh v. Karunesh Kumar, 2022 LiveLaw (SC) 1035

Service Law - Supreme Court dismisses the review against the judgment in Professor (Dr.) Sreejith P.S. v. Dr. Rajasree M.S. & Ors 2022 LiveLaw (SC) 871 which set aside the appointment of the Vice Chancellor of the APJ Abdul Kalam Kerala Technological University in 2019. Dr. Rajasree M.S. v. Professor (Dr) Sreejith PS,, 2022 LiveLaw (SC) 1023

Specific Relief Act, 1963 - Contract Act, 1872; Section 55 - Defense under Section 55 of Contract Act is valid against anyone who is seeking the relief of specific performance. Desh Raj v. Rohtash Singh, 2022 LiveLaw (SC) 1026

Specific Relief Act, 1963; Section 22(2) - Unless a plaintiff specifically seeks the refund of the earnest money at the time of filing of the suit or by way of amendment, no such relief can be granted to him. The prayer clause is a sine qua non for grant of decree of refund of earnest money. (Para 31) Desh Raj v. Rohtash Singh, 2022 LiveLaw (SC) 1026

NOMINAL INDEX

1. B.R.K Aathithan v. Sun Group, 2022 LiveLaw (SC) 1022
2. Bhagyoday Cooperative Bank Ltd. v. Ravindra Balkrishna Patel, 2022 LiveLaw (SC) 1020
3. Chandi Puliya v. State of West Bengal, 2022 LiveLaw (SC) 1019
4. Desh Raj v. Rohtash Singh, 2022 LiveLaw (SC) 1026
5. Dr. Rajasree M.S. v. Professor (Dr) Sreejith PS, 2022 LiveLaw (SC) 1023
6. Hasmukhlal D. Vora v. State of Tamil Nadu, 2022 LiveLaw (SC) 1033
7. Iqram v. State of Uttar Pradesh, 2022 LiveLaw (SC) 1032
8. Kalicharan v. State of Uttar Pradesh, 2022 LiveLaw (SC) 1027
9. Kerala State Electricity Board v. Thomas Joseph @ Thomas M.J., 2022 LiveLaw (SC) 1034
10. Neeraj Dutta v. State (GNCTD), 2022 LiveLaw (SC) 1029
11. Priyanka v. Santoshkumar, 2022 LiveLaw (SC) 1021
12. R. Nagender Yadav v. State of Telangana, 2022 LiveLaw (SC) 1030
13. Ram Pratap v. State of Haryana, 2022 LiveLaw (SC) 1025
14. State of Gujarat v. Sandip Omprakash Gupta, 2022 LiveLaw (SC) 1031
15. State of Rajasthan v. Gurbachan Singh, 2022 LiveLaw (SC) 1028
16. State of Uttar Pradesh v. Karunesh Kumar, 2022 LiveLaw (SC) 1035
17. State of West Bengal v. Sandip Biswas, 2022 LiveLaw (SC) 1024