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Supreme Court Monthly Digest May...

Supreme Court Monthly Digest May 2024

LIVELAW NEWS NETWORK

20 July 2024 1:58 PM IST

Arbitration and Conciliation Act, 1996

Section 25 – Termination of arbitral proceedings – The learned Arbitrator is bound to terminate the proceedings on grounds of failure of the claimant to file his statement of claim in accordance with Section 23, in view of Section 25(a). If the respondent to the proceedings fails to file a statement of defence in accordance with Section 23, in the light of Section 25(b), the learned Arbitrator is bound to proceed further with the arbitral proceedings. Even if the claimant, after filing a statement of claim, fails to appear at an oral hearing or fails to produce documentary evidence, the learned Arbitrator is expected to continue the proceedings as provided in Section 25(c). Held, The fact that clause (c) of Section 25 enables the Arbitral Tribunal to proceed in the absence of the claimant shows the legislature's intention that the claimant's failure to appear after filing the claim cannot be a ground to say that the proceedings have become unnecessary or impossible. (Para 10, 12 & 15) Dani Wooltex Corporation v. Sheil Properties Pvt. Ltd., 2024 LiveLaw (SC) 405

Section 32 – Grounds for termination of arbitral proceedings – Section 32 provides for the termination of the arbitral proceedings in the following contingencies: a. On making final arbitral award; b. On the Claimant withdrawing his claim as under Section 32(2)(a); c. Parties agreeing on termination of arbitral proceedings as under Section 32(2)(b); or d. When the Arbitral Tribunal finds that the continuation of proceedings has become unnecessary or impossible for any other reason, as under Section 32(2)(c). Held, Section 32(2)(c) can be invoked for reasons other than those mentioned in Section 32(2)(a) & 32(2)(b). Under Section 32(2)(c), mere existence of a reason for terminating the proceedings is not sufficient and reason must be such that the continuation of the proceedings has become unnecessary or impossible. Further held, if, after filing a claim, the claimant fails to appear at an oral hearing or fails to produce documentary evidence, it cannot be said that the continuation of proceedings has become unnecessary and the learned Arbitrator can proceed with the arbitral proceedings. (Para 14 & 15) Dani Wooltex Corporation v. Sheil Properties Pvt. Ltd., 2024 LiveLaw (SC) 405

Section 32(2)(c) - Termination of arbitration proceedings on grounds that the continuation of proceedings has become unnecessary or impossible – Abandonment by the claimant of his claim makes the arbitral proceedings unnecessary. Mere absence in proceedings or failure to participate does not, per se, amount to abandonment. Only if the established conduct of a claimant is such that it leads only to one conclusion that the claimant has given up, his/her claim can an inference of abandonment be drawn. Held, there is no material on record to conclude that claimant had abandoned its claim. The finding of the learned Arbitrator that there was abandonment of the claim is not based on any documentary or oral evidence on record. Hence, the finding is entirely illegal. (Para 16 & 20) Dani Wooltex Corporation v. Sheil Properties Pvt. Ltd., 2024 LiveLaw (SC) 405

Section 32(2)(c) - Termination of arbitration proceedings on grounds that the continuation of proceedings has become unnecessary or impossible – Abandonment by the claimant of his claim makes the arbitral proceedings unnecessary. Only because a claimant, after filing his statement of claim, does not move the Arbitral Tribunal to fix a date for the hearing, the failure of the claimant, per se, will not amount to the abandonment of the claim. Held, the failure of the claimant to request the Arbitral Tribunal to fix a date for hearing, per se, is no ground to conclude that the proceedings have become unnecessary. (Para 21) Dani Wooltex Corporation v. Sheil Properties Pvt. Ltd., 2024 LiveLaw (SC) 405

Section 34 & 37 – Interference in arbitral award has limited scope under Section 34 and 37 – As far as the construction of the terms of a contract is concerned, it is for the Arbitral Tribunal to adjudicate upon. If, after considering the material on record, the Arbitral Tribunal takes a particular view on the interpretation of the contract, the Court under Section 34 does not sit in appeal over the findings of the arbitrator. The majority opinion of technical persons need not be subjected to a relook, especially when the learned Single Judge had also agreed with the view taken by the Arbitral Tribunal. The findings of the majority in the Arbitral award is upheld. No merit in appeal. (Para 13 & 15) National Highway Authority of India v. Hindustan Construction Company Ltd; 2024 LiveLaw (SC) 361

Withdrawal of arbitrator – An Arbitrator always has the option to withdraw for any reason. Therefore, he can withdraw because of the parties' noncooperation in the proceedings. But in such a case, his mandate will be terminated, not the arbitral proceedings. (Para 13) Dani Wooltex Corporation v. Sheil Properties Pvt. Ltd., 2024 LiveLaw (SC) 405

Bail

In the matters relating to liberty of a citizen every single day counts. Keeping the matter for regular bail pending for a period of almost 11 months deprives the petitioner of his valuable right of liberty. Amandeep Singh Dhall v. Central Bureau of Investigation, 2024 LiveLaw (SC) 399

Bank

Recipients of a fixed deposit cannot suffer at the cost of the criminal conduct of the Bank officials and that, in such an event the Bank would be held vicariously liable for the conduct of their employees. Leelawati Devi v. District Cooperative Bank Ltd., 2024 LiveLaw (SC) 346

Bar Association

The Supreme Court directs minimum 1/3rd women's reservation in Supreme Court Bar Association posts from 2024 elections. Supreme Court Bar Association v. B.D. Kaushik, 2024 LiveLaw (SC) 340

Cable Television Networks Rules, 1994

Rule 7 – Directions against misleading ads – Held, before an advertisement is printed/aired/displayed, a Self-declaration shall be submitted by the advertiser/advertising agency on the lines contemplated in Rule 7 of the Cable Television Networks Rules, 1994. The Self-declaration shall be uploaded by the advertiser/advertising agency on the Broadcast Sewa Portal run under the aegis of the Ministry of Information and Broadcasting. No advertisements shall be permitted to be run on the relevant channels and/or in the print media/internet without uploading the self-declaration as directed above. Further held, the directions shall be treated as the law declared by this Court under Article 141 of the Constitution of India. (Para 23 & 24) Indian Medical Association v. Union of India, 2024 LiveLaw (SC) 381

Central Excise Tariff Act, 1985

Note 3 to Chapter 18 and Central Goods and Services Tax Act, 2017; Section 2(f) – Activities amounting to “manufacture” – Whether the labelling/re-labelling or putting additional labels on the product amounted to manufacture? – Note 3 contemplates three different processes and if either of the three processes are satisfied, the same would amount to manufacture. The three processes are: (i) labelling or re-labelling of containers; or (ii) repacking from bulk packs to retail packs; or (iii) the adoption of any other treatment to render the product marketable to the consumer. Held, in terms of Note 3 to Chapter 18, the process of re-labelling on both sides of the packs containing goods in the present case would amount to 'manufacture'. Hence, view taken by CESTAT that the credit and the rebate were rightly availed of by the respondent is correct and no interference is required. Appeal is dismissed. (Para 13.3, 15 & 16) Commissioner of Central Excise Belapur v. Jindal Drugs Ltd; 2024 LiveLaw (SC) 374

Cenvat Credit Rules, 2004; Rule 3 – Held, rule 3 allows cenvat credit only in a case where the process undertaken amounts to manufacture. (Para 5.5) Commissioner of Central Excise Belapur v. Jindal Drugs Ltd; 2024 LiveLaw (SC) 374

Central Reserve Police Force Act, 1949

Section 11 (1) and Central Reserve Police Force Rules, 1955; Rule 27 – Punishment of compulsory retirement is challenged – The respondent was part of a disciplined force and has been found guilty of assaulting his colleague. The punishment of compulsory retirement is not shockingly disproportionate to the proven misconduct. Hence, there is no reason to interfere with the punishment awarded. The punishment of compulsory retirement awarded to the respondent is affirmed. (Para 35 & 36) Union of India v. Santosh Kumar Tiwari, 2024 LiveLaw (SC) 366

Section 11 (1) and Central Reserve Police Force Rules, 1955; Rule 27 – Validity of Rule 27 of the CRPF Rules – Whether Rule 27 to the extent it provides for punishments other than those specified in Section 11 of the CRPF Act, ultra vires the CRPF Act and as such inoperable and void? – Held, Section 11 expressly uses the phrase “subject to any rules made under this Act” which conveys the idea of a provision yielding place to another provision or other provisions subject to which it is made. When the enabling Act itself permits its modification by rules, the rules made prevail over the provision in the Act. Hence, the Central Government in exercise of its general rule-making power, can prescribe punishments other than those specified in section 11, including the punishment of compulsory retirement. Prescribing the punishment of compulsory retirement under Rule 27 cannot be said to be ultra vires Section 11 of the CRPF Act. (Para 28, 29, 32, 33) Union of India v. Santosh Kumar Tiwari, 2024 LiveLaw (SC) 366

Chartered Accountants Act, 1949

The Supreme Court upheld a rule issued by the Institute of Chartered Accountants of India (ICAI) barring Chartered Accountants from accepting more than the "specified number of tax audit assignments" (at present, the upper limit is set at 60) in a financial year. The rule (para 6.0 of Chapter VI of the Council Guidelines No. 1-CA(7)/02/2008 dt. 08/08/2008 and the subsequent amendments) are not violative of the fundamental right to practise profession guaranteed under Article 19(1)(g) of the Constitution. The clause will be deemed to be effective from 01.04.2024 and quashed the disciplinary proceedings initiated against the members for violation of the clause. The ICAI will be at liberty to enhance the number of audits that a CA can undertake. Shaji Paulose v. Institute of Chartered Accountants of India, 2024 LiveLaw (SC) 397

Institute of Chartered Accountants of India (ICAI) - Role of the ICAI - ICAI has, over time, received recognition as a premier accounting body domestically and globally for maintaining the highest standards. The ICAI has also played a significant role in ensuring the dynamism of the CA course and the credibility of the examination. We commend that the ICAI must be committed towards the convergence of accounting and ethical standards with international standards. The true test, however, lies in enforcement of these standards. (Para 48) Shaji Paulose v. Institute of Chartered Accountants of India, 2024 LiveLaw (SC) 397

Civil Appeal

Application for condonation of delay filed by stranger to suit – Held, the approach of the trial court in entertaining an application filed at the behest of a stranger for condonation of delay in filing an application for restoration of the subject suit is totally unsustainable in law and illegal. (Para 9) Vijay Laxman Bhawe v. P and S Nirman Pvt. Ltd, 2024 LiveLaw (SC) 360

The appellant was an elected representative. Held, the elected members cannot be removed at the whims and fancies of the civil servants or their political masters only because some of such elected members are found to be inconvenient within the system. The removal of the appellant from the office of Councilor/Vice-President with a further ban on him to contest election for six years is highly excessive and disproportionate to the nature of the so-called misconduct attributed to him. (Para 10, 11, 12) Makarand @ Nandu v. State of Maharashtra, 2024 LiveLaw (SC) 354

Code of Civil Procedure, 1908

Order 21, Rule 54(1) & 66 – Valuation of sale property – Either whole of the attached property or such portion thereof as may seem necessary to satisfy the decree shall be sold in auction. The valuation of the property mentioned in attachment Panchanama (prepared under Rule 54) can always provide the estimated value of the property, otherwise the provisions enabling the court to auction only a part of the property which would be sufficient to satisfy the decree would be unworkable or redundant. The sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction. Held, when only one of the attached properties was sufficient to satisfy the decree there was no requirement for effecting the sale of the entire attached properties. Further held, when the valuation of three attached properties is mentioned in the attachment Panchanama, it was the duty of the Court to have satisfied itself on this aspect and having failed to do so the Court has caused great injustice to the judgment debtor by auctioning his entire attached properties causing huge loss to the judgment debtor and undue benefit to the auction purchaser. (Para 22 & 25) Bhikchand v. Shamabai Dhanraj Gugale, 2024 LiveLaw (SC) 375

Order 33 and Order 44 – Suits by indigent persons and appeals by indigent persons – These provisions “exemplify the cherished principle that lack of monetary capability does not preclude a person from knocking on the doors of the Court to seek vindication of his rights.” (Para 11) Alifiya Husenbhai Keshariya v. Siddiq Ismail Sindhi, 2024 LiveLaw (SC) 414

Order 41 Rule 31 – Omission to frame points of determination by the first appellate court – Held, even if the first appellate Court does not separately frame the points for determination arising in the first appeal, it would not prove fatal as long as that Court deals with all the issues that actually arise for deliberation in the said appeal. Substantial compliance with the mandate of Order 41 Rule 31 CPC in that regard is sufficient. (Para 30) Mrugendra Indravadan Mehta v. Ahmedabad Municipal Corporation, 2024 LiveLaw (SC) 369

Order 44, Rule 1 – Appeal filed as an indigent person – The grounds on which the claimants application to file appeal as an indigent person was rejected, that the claimant had received compensation by way of the Award of the Tribunal, and therefore, she was not indigent is incorrect. Held, this observation cannot be accepted as the claimant had received no money at that point of time. So even though she had been awarded a sum, her indigency was not extinguished thereby. Hence, the impugned order is set aside. (Para 15) Alifiya Husenbhai Keshariya v. Siddiq Ismail Sindhi, 2024 LiveLaw (SC) 414

Order 44, Rule 3(2) – Inquiry as to whether applicant is an indigent person – No further inquiry would be required in respect of a person who was allowed to sue or appeal as an indigent person if they make an affidavit to the effect that they have not ceased to be an indigent unless the Government pleader objects or disputes such claim in which case an inquiry shall be held by the Appellate Court or under the orders thereof. Held, the statutory requirement under the C.P.C., was not met. Hence, the impugned order is set aside. (Para 18) Alifiya Husenbhai Keshariya v. Siddiq Ismail Sindhi, 2024 LiveLaw (SC) 414

Section 13 – Bar of Res Judicata – Maintainability of suit challenged – Held, the suit is filed with a different set of facts and another set of litigants have raised additional contentions. Therefore, the writ petition should not be dismissed on the ground of res-judicata. (Para 23) Abhimeet Sinha v. High Court of Judicature at Patna, 2024 LiveLaw (SC) 350

Section 144 – Objection of restitution on grounds of being a bona fide purchaser – Held, one who has purchased property from decree holder with full knowledge of pending restitution proceedings is not entitled to object restitution on the ground that he is a bona fide purchaser. (Para 18) Bhikchand v. Shamabai Dhanraj Gugale, 2024 LiveLaw (SC) 375

Section 144 – Restitution – A decree for realisation of a sum in favour of the plaintiff should not amount to exploitation of the judgment debtor by selling his entire property. The right of a decree holder should never be construed to have bestowed upon him a bonanza only because he had obtained a decree for realisation of a certain amount. Restitution application is allowed. Sale of the attached properties belonging to the judgment debtor is set aside and the parties are restored back to the position where the execution was positioned before the attachment of the immovable properties. (Para 27 & 28) Bhikchand v. Shamabai Dhanraj Gugale, 2024 LiveLaw (SC) 375

Code of Criminal Procedure, 1973

Appeal against conviction – Held, Conviction is confirmed. The impugned judgments do not suffer from any infirmity warranting any interference. (Para 49 & 50) Sukhpal Singh v. NCT of Delhi, 2024 LiveLaw (SC) 359

Enhancement of sentence – Held, enhancement in sentence is not justified nearly 35 years after the incident. (Para 14) State of Himachal Pradesh v. Raghubir Singh, 2024 LiveLaw (SC) 403

Code of Criminal Procedure SVT., 1989 – Retrospective application of Code of Criminal Procedure (CrPC), 1973 – Held, CrPC, 1973 will apply to Jammu and Kashmir only with effect from 31.10.2019, the date when the Jammu and Kashmir Reorganization Act, 2019 came into effect. CrPC, 1973 would govern the field only from the appointed day and consequently the CrPC, 1989 stands repealed. (Para 30 & 31) National Investigation Agency v. Owais Amin @ Cherry, 2024 LiveLaw (SC) 389

Code of Criminal Procedure SVT., 1989; Section 196 & 196A – Under section 196, a jurisdictional court shall take cognizance only upon a complaint made by the order of, or under the authority from the Government, or a District Magistrate, or such other officer as empowered by the Government for the aforesaid purpose. The compliance under section 196 mandatory, failing which a Court cannot take cognizance. Section 196A only deals with specified classes of criminal conspiracy. Section 196-A(1) speaks of the object of the conspiracy qua an illegal act other than an offence, a legal act by illegal means, or an offence to which Section 196 applies. For taking cognizance of such an offence, a complaint can only be made either by an order of the Government, or under its authority, or by an officer empowered by it. In the case of Section 196-A, cognizance of a complaint can be taken by a Court only after satisfying itself of the due compliance of Section 196-A(1) with respect to competence of the authority. Though Sections 196 and 196-A seem to be similar insofar as the authority competent to convey a complaint is concerned, under Section 196 a District Magistrate can lodge it by himself, whereas, the same provision is not available under Section 196-A. Hence, Section 196-A of CrPC, 1989 is pari materia to Section 196A. Held, the appellant may comply with the mandate of Section 196-A by seeking appropriate authorization or empowerment as the case may be. If such a compliance is duly made, then the Trial Court shall undertake the exercise of taking cognizance, and proceed further with the trial in accordance with law. (Para 15, 16 & 17) National Investigation Agency v. Owais Amin @ Cherry, 2024 LiveLaw (SC) 389

Section 102 (1) – Grounds to challenge seizure – The order of seizure can be challenged on the ground that the seizing officer lacked jurisdiction to act under Section 102(1) Cr.P.C. or that the seized item does not satisfy the definition of 'property' or on the ground that the property which was seized could not have given rise to suspicion concerning the commission of a crime, in order for the authorities to justify the seizure. (Para 13) Shento Varghese v. Julfikar Husen, 2024 LiveLaw (SC) 371

Section 102(1) & 102(3) – 'Seizure orders' – Substantive power on the police to seize property linked to a crime – Whether non-compliance with the procedural formality of reporting such seizure forthwith to the Magistrate would vitiate the seizure? – Held, the validity of the power exercised under Section 102(1) Cr.P.C. is not dependent on the compliance with the duty prescribed on the police officer under Section 102(3) Cr.P.C. The obligation to report the seizure to the Magistrate is neither a jurisdictional pre-requisite for exercising the power to seize nor is the exercise of such power made subject to compliance with the reporting obligation. Hence, the act of seizure (seizure order) would not get vitiated by virtue of such delay in reporting to the magistrate. (Para 13, 14 & 24) Shento Varghese v. Julfikar Husen, 2024 LiveLaw (SC) 371

Section 102 (3) – Interpretation of the expression 'shall forthwith report the seizure to the Magistrate' – The expression means 'as soon as may be', 'with reasonable speed and expedition', 'with a sense of urgency', and 'without any unnecessary delay'. In other words, it would mean as soon as possible, judged in the context of the object sought to be achieved or accomplished. Hence, the interpretation of the word 'forthwith' would depend upon the terrain in which it travels and would take its colour depending upon the prevailing circumstances which can be variable. (Para 22 & 23) Shento Varghese v. Julfikar Husen, 2024 LiveLaw (SC) 371

Section 156(3) – Magistrate empowered to order investigation – Held, the Trial Court after having been prima facie satisfied, had exercised its judicial discretion directing investigation under Section 156(3) of CrPC Further held, such order being just, legal and proper, the High Court should not have interfered with the same, more particularly while exercising limited powers under Section 482 of CrPC. (Para 10) Sas Infratech Pvt. Ltd. v. State of Telangana, 2024 LiveLaw (SC) 412

Section 156(3) & 190 – Magistrate power to take cognizance – When the Magistrate in exercise of his judicial discretion directs investigation under Section 156(3) of CrPC, he cannot be said to have taken cognizance of any offence. It is only when the Magistrate after applying his mind prefers to follow the procedure under Chapter XV of CrPC by resorting to Section 200, he can be said to have taken cognizance of the offence. (Para 8) Sas Infratech Pvt. Ltd. v. State of Telangana, 2024 LiveLaw (SC) 412

Section 161(1) & 162(1) – The statement made by a witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re-examination of the witness if necessary. (Para 63) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344

Section 299 and Indian Evidence Act, 1872; Section 33 – Record of evidence in absence of accused – Deposition of any witness taken in the absence of an accused may be used against him if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without any amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. Held, despite ample efforts made, the witness cannot be traced and produced in the witness box for deposition during trial after the accused had been arrested. Hence, the statement earlier recorded was fit to be read as a piece of substantive evidence against the accused. (Para 31, 38 & 39) Sukhpal Singh v. NCT of Delhi, 2024 LiveLaw (SC) 359

Section 313 and Indian Evidence Act, 1872– Admissibility of statement of accused under Section 313(1) as evidence – Section 313(4) of the Cr.PC provides that the answers given by the accused in his examination under Section 313(1) of the Cr.PC may be taken into consideration in the trial. But the conviction cannot be based solely on the statements made by an accused under Section 313(1) but in conjunction with the evidence adduced by the prosecution. (Para 6) State of Himachal Pradesh v. Raghubir Singh, 2024 LiveLaw (SC) 403

Section 313 and Indian Evidence Act, 1872 – Cross-examination of the prosecutrix – The case of accused made out in statement under Section 313 of Cr.PC was that they was in a physical relationship with the victim and were paying money to the victim for maintaining a sexual relationship was not put to the prosecutrix in cross-examination. Held, while appreciating the evidence adduced by the prosecution, answers given by the accused in the examination under Section 313(1), that they maintained a physical relationship with the prosecutrix by paying her money can be considered. In the cross-examination, the case put to the prosecutrix was that she had voluntarily accompanied the accused and there was no suggestion given by the accused that the sexual intercourse with the consent of the prosecutrix. Further held, the evidence of the prosecutrix in her examination-in-chief that the accused committed sexual intercourse with her has not been shaken. Conviction granted by the High Court is upheld. (Para 10 & 12) State of Himachal Pradesh v. Raghubir Singh, 2024 LiveLaw (SC) 403

Section 319 – Legality of summon order – Power under Section 319 can only be excercised if evidence against the accused is strong and reliable i.e. much stronger evidence than mere probability of his complicity. The evidence before the trial court should be such that if it goes unrebutted, then it should result in the conviction of the person who is sought to be summoned. Held, deposition of PW-1, not being an eye-witness, is not sufficient enough to invoke the extra-ordinary jurisdiction under Section 319 to summon the appellants. There are no other witnesses or documentary evidence against the appellants. The higher degree of satisfaction that is required for exercising power under Section 319 Cr.P.C. is not met. Hence, the trial Court committed a serious error in allowing the application under Section 319 and issuing summons to the appellants. Summon order is set aside. (Para 16, 23, 24 & 25) Shankar v. State of Uttar Pradesh, 2024 LiveLaw (SC) 345

Section 357 – Victimology – Impugned order to pay compensation in lieu of Punishment – Held, the High Court having once affirmed the conviction and awarded sentence of four years could not have further diluted the order of sentence by asking the accused persons to pay compensation. Further held, Payment of victim compensation cannot be a consideration or a ground for reducing the sentence imposed upon the accused as victim compensation is not a punitive measure and only restitutory in nature and thus, has no bearing with the sentence that has been passed which is punitive in nature. Hence, the High Court fell into error. Sentences such as imprisonment and / or fine are imposed independently of any victim compensation and thus, the two stand on a completely different footing, either of them cannot vary the other. If payment of compensation becomes a consideration for reducing sentence, itt will result in criminals with a purse full of money to buy their way out of justice, defeating the very purpose of criminal proceedings. (Para 21, 23, 25, 26) Rajendra Bhagwanji Umraniya v. State of Gujarat, 2024 LiveLaw (SC) 378

Section 357 – Victimology – Object – The idea of victim compensation – Theory of Victimology seeks to take into consideration the effect of the offence on the victim's family even though human life cannot be restored but then monetary compensation will at least provide some solace. The object of victim compensation is to rehabilitate those who have suffered any loss or injury by the offence which has been committed. The sole factor for deciding the compensation to be paid is the victim's loss or injury as a result of the offence and the convict's capacity to pay, and has nothing to do with the sentence that has been passed. (Para 22, 24) Rajendra Bhagwanji Umraniya v. State of Gujarat, 2024 LiveLaw (SC) 378

Section 439 – Considerations for setting aside Bail order – Considerations include any supervening circumstances that may have occurred after granting relief to the accused, the conduct of the accused while on bail, any attempt on the part of the accused to procrastinate, resulting in delaying the trial, any instance of threats being extended to the witnesses while on bail, any attempt on the part of the accused to tamper with the evidence in any manner. This list is only illustrative and not exhaustive. (Para 28) Ajwar v. Waseem, 2024 LiveLaw (SC) 392

Section 439 – Parameters for granting Bail – The parameters are: nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. Further, at the stage of granting bail, only a prima facie case needs to be examined and detailed reasons relating to the merits of the case that may cause prejudice to the accused, ought to be avoided. Suffice it is to state that the bail order should reveal the factors that have been considered by the Court for granting relief to the accused. (Para 26 & 28) Ajwar v. Waseem, 2024 LiveLaw (SC) 392

Section 439 (1) – Power of cancellation of Bail – It is equally well settled that bail once granted, ought not to be cancelled in a mechanical manner. However, an unreasoned or perverse order of bail is always open to interference by the superior Court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a superior Court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on the society resulting in such an order. Held, the respondents do not deserve the concession of bail. Hence, the bail orders are quashed and set aside. (Para 27 & 35) Ajwar v. Waseem, 2024 LiveLaw (SC) 392

Section 482 – Power to quash chargesheet – The power under Section 482 of the Cr.P.C. has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. Section 482 of the Cr.P.C. does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. If the Court is convinced by the fact that the involvement by the complainant of her husband and his close relatives is with an oblique motive then even if the FIR and the chargesheet disclose the commission of a cognizable offence the Court with a view to doing substantial justice should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. Held, if the criminal proceedings are allowed to continue against the Appellant, the same will be nothing short of abuse of process of law & travesty of justice. The High Court should have exercised its inherent power under Section 482 of the Cr.P.C. for the purpose of quashing the criminal proceedings. (Para 20, 21, 31 & 36) Achin Gupta v. State of Haryana, 2024 LiveLaw (SC) 343

Section 482 – Quashing of chargesheet – Object – The court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out, prima facie, whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge, more particularly when a prosecution arises from a matrimonial dispute. (Para 25) Achin Gupta v. State of Haryana, 2024 LiveLaw (SC) 343

Section 482 – Quashing of chargesheet – Stages at which the power to quash can be used – There is nothing in the words of Section 482 of the Cr.P.C. which restricts the exercise of the power of the court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It would be a travesty of justice to hold that the proceedings initiated against a person can be interfered with at the stage of FIR but not if it has materialized into a chargesheet. (Para 22) Achin Gupta v. State of Haryana, 2024 LiveLaw (SC) 343

Constitution of India

Article 12 & 226 – Maintainability of Writ Petition – 'State' or 'Other Authority' – The respondent employer, Air India Limited (AIL) after its disinvestment ceased to be a State or its instrumentality within the meaning of Article 12 of the Constitution of India – The writ petitions were maintainable on the date of institution but whether they continued to be maintainable as on the date the same were finally heard? – Held, the issue about exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution of India would arise only on the date when the writ petitions were taken up for consideration and decision. The subsequent event of disinvestment of the Government Company and its devolution into a private company would make the company immune from being subjected to writ jurisdiction under Article 226, even if the litigant had entered the portals of the Court while the employer was the Government. (Para 5, 32 & 38) R.S. Madireddy v. Union of India, 2024 LiveLaw (SC) 384

Article 12 & 226 – Writ Jurisdiction of High Court – The High Court has the power to issue the directions, orders or writs including writs in the nature of Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition to any person or authority, including in appropriate cases, any Government within its territorial jurisdiction for the enforcement of rights conferred by Part-III of the Constitution of India and for any other purpose. Held, since, respondent employer (AIL) had been disinvested and had assumed the character of a private entity not performing any public function, the High Court could not have exercised the extraordinary writ jurisdiction to issue a writ to such private entity. (Para 34 & 38) R.S. Madireddy v. Union of India, 2024 LiveLaw (SC) 384

Article 14 & 16 and Gujarat Rules, 2005; Rule 8 – Constitutionality of the Rules stipulating minimum qualifying marks in the viva voce test, as a part of the selection criteria, is challenged – Held, the Prescription of minimum qualifying marks for interview is permissible and this is not in violation of All India Judges Association and Others vs. Union of India and Others which accepted certain recommendations of the Shetty Commission. Further held, the minimum cut-off of 20% for the Bihar recruitment and 40% for the Gujarat recruitment cannot be considered to provide a high threshold if one keeps in mind that the recruitment is for selection of judicial officers. The object of viva voce set out in Rule 8(5) of Gujarat Rules, 2005 has a reasonable and direct nexus with the object sought to be achieved i.e. the appointment of well-rounded judicial officers. For recruitment of judicial officers, ideally the effort should be to not only test the candidate's intellect but also their personality. The prescription of minimum cut off is also not perceived to be of such a nature that it reeks of irrationality, or was capricious and/or without any adequate determining principle. It does not appear to be disproportionate so as to adversely affect “meritorious” candidates and certainly not manifestly arbitrary, or irrational or violative of Article 14 of the Constitution of India. The concerned recruitment Rules cannot be said to be unconstitutional. The impugned selection process in the State of Bihar and Gujarat are found to be legally valid and are upheld. (Para 66, 67 & 102) Abhimeet Sinha v. High Court of Judicature at Patna, 2024 LiveLaw (SC) 350

Article 14 and Income Tax Rules, 1962; Rule 3(7) (i) – Fixing single benchmark for interest rates charged by different banks – Rule 3(7) (i) is challenged to be arbitrary and violative of Article 14 insofar as it treats the PLR of SBI as the benchmark to determine the value of benefit to the assessee in comparison to the rate of interest charged by other individual banks – Held, it is neither arbitrary nor unequal exercise of power. By fixing a single clear benchmark for computation of the perquisite or fringe benefit, the rule prevents ascertainment of the interest rates being charged by different banks from the customers and, thus, checks unnecessary litigation. Rule 3(7) (i) ensures consistency in application, provides clarity for both the assessee and the revenue department, and provides certainty as to the amount to be taxed. Rule 3(7) (i) is based on a uniform approach and fair determining principle which aligns with constitutional values. Hence, Rule 3(7) is held to be intra vires Article 14 of the Constitution of India. (Para 32 & 33) All India Bank Officers' Confederation v. Central Bank of India, 2024 LiveLaw (SC) 352

Article 21 – Primacy of consent of pregnant person in abortion – The right to choose and reproductive freedom is a fundamental right under Article 21 of the Constitution. The consent of a pregnant person in decisions of reproductive autonomy and termination of pregnancy is paramount and the MTP Act does not allow any interference with the personal choice of a pregnant person in terms of proceeding with the termination. The Act or indeed the jurisprudence around abortion developed by the courts leave no scope for interference by the family or the partner of a pregnant person in matters of reproductive choice. In case there is a divergence in the opinion of a pregnant person and her guardian, the opinion of the minor or mentally ill pregnant person must be taken into consideration as an important aspect in enabling the court to arrive at a just conclusion. (Para 32, 35 & 37) A (Mother of X) v. State of Maharashtra, 2024 LiveLaw (SC) 349

Article 21 – Right to abortion – The right to abortion is a concomitant right of dignity, autonomy and reproductive choice guaranteed under Article 21 of the Constitution. The fundamental right of a pregnant person is not compromised for reasons other than to protect the physical and mental health of the pregnant person. (Para 21) A (Mother of X) v. State of Maharashtra, 2024 LiveLaw (SC) 349

Article 21 – The expression 'life' unequivocally includes the right to live a life worthy of human honour and dignity. Self-regard, social image and an honest space for oneself in one's surrounding society, are just as significant to a dignified life as are adequate food, clothing and shelter. Held, pre-conceived notions of prevailing stereotypes associated with a particular community, often render them 'invisible victims' and impede their right to live a life with self-respect. (Para 14 & 15) Amanatullah Khan v. Commissioner of Police, 2024 LiveLaw (SC) 351

Article 21 – Right to health – The fundamental right to health encompasses the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies. (Para 23) Indian Medical Association v. Union of India, 2024 LiveLaw (SC) 381

Article 21 & 22(1) & 22 (5) – Mandatory to inform' grounds of arrest' – The requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Noncompliance of this constitutional requirement and statutory mandate would lead to the custody or the detention being rendered illegal, as the case may be. (Para 30) Prabir Purkayastha v. State, 2024 LiveLaw (SC) 376

Article 22(1) and Unlawful Activities (Prevention) Act, 1967 (UAPA); Section 43B (1) – The proceedings of arrest and the police custody remand of appellant is questioned – On grounds that mandator requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested is not provided – The arrest memo nowhere conveys the grounds on which the accused was being arrested. Keeping the accused in police custody without informing him the grounds on which he has been arrested; deprives the accused of the opportunity to avail services of the legal practitioner of his choice to oppose the prayer for police custody remand and seek bail. Held, the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the accused appellant or his counsel before passing of the order of remand which vitiates the arrest and subsequent remand of the appellant. Further held, the mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused. The arrest of the appellant followed by remand order are hereby declared to be invalid in the eyes of law and are quashed and set aside. Hence, the appellant is entitled to a direction for release from custody. (Para 48, 50 & 51) Prabir Purkayastha v. State, 2024 LiveLaw (SC) 376

Article 141 – Held, directions of the court shall be treated as the law under Article 141 of the Constitution of India. (Para 24) Indian Medical Association v. Union of India, 2024 LiveLaw (SC) 381

Article 142 and Indian Penal Code, 1860; Section 354D & 506 – Power of court exercised to quash conviction of accused – Held, the offences under Section 354D IPC and Section 506 IPC are personal to the complainant and the accused, and the fact that the appellant and the complainant have married each other during the pendency of the appeal gives rise to a reasonable belief that both were involved in some kind of relationship even when the offences alleged were said to have been committed. Hence, on grounds that the accused and the complainant married each other and the affirmation of the conviction of accused would have the disastrous consequence on the matrimonial relationship of the accused with the complainant, the appellant is acquitted of the charges. (Para 7, 9 & 11) Dasari Srikanth v. State of Telangana, 2024 LiveLaw (SC) 391

Article 226 – Civil Suit filed to declare clause 8 of Notice Inviting Tender (NIT) arbitrary – Clause 8 of the NIT mandated deposit of five post-dated cheques and bank guarantee to secure the payment of balance auction amount – Held, once the respondent-writ petitioner had participated in the tender process being fully conscious of the terms and conditions of the auction notice, he was estopped from taking a U-turn so as to question the legality or validity of the terms and conditions of the auction notice. By dragging the matter to litigation, the respondent himself was responsible for the delay occasioned in issuance of the work order which deprived him of the opportunity to work for the entire period of 365 days. The impugned order granting payment of pro-rata auction amount for the 33 days, that he has worked less than the contract period, is ex-facie illegal and without jurisdiction. Hence, the same is quashed and set aside. (Para 21 & 24) Municipal Committee Katra v. Ashwani Kumar, 2024 LiveLaw (SC) 373

Article 226 – Claim of damages in Writ Petition – Held, such relief is not subject matter of extra ordinary writ jurisdiction of the High Court under Article 226 of the Constitution of India. Law is well settled that disputes arising out of purely contractual obligations cannot be entertained by the High Court in exercise of the extra ordinary writ jurisdiction. Hence, the High Court ought to have relegated the writ petitioner (respondent herein) to the competent Court for claiming damages. (Para 22 & 23) Municipal Committee Katra v. Ashwani Kumar, 2024 LiveLaw (SC) 373

Article 226 – Writ petition – Petition rejected by High Court on grounds of delay – Held, delay and laches cannot be raised in a case of a continuing cause of action or if the circumstances shock the judicial conscience of the court. The condition of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of the case. It would depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice. Hence, impugned order of High Court is set aside and the matter is remitted to the High Court for fresh consideration. (Para 25) Dharnidhar Mishra v. State of Bihar, 2024 LiveLaw (SC) 380

Article 227 – Jurisdiction of High Court to interfere with order of trial court – Held, the High court could not have interfered with the order of the trial Court, unless found the view taken by the learned trial Judge was perverse or impossible. (Para 19) P. Seshareddy v. State of Karnataka, 2024 LiveLaw (SC) 379

Article 234 and Gujarat Rules, 2005; Rule 8 – Consultation with public service commission required under Article 234 of the Constitution for amending the rules –The prescription of minimum qualifying marks in the viva-voce under Rule 8(3) of Gujarat Rules, 2005 as amended in 2011 was only in consultation with the High Court of Gujarat but not with the Gujarat Public Service Commission. Held, the Governor is under no compulsion to consult the Public Service Commission in case the Commission does not wish to be consulted. The concerned Gujarat Rules cannot, therefore, be declared to be void particularly when the Rules were framed with due consultation with the High Court. (Para 93, 97 & 102) Abhimeet Sinha v. High Court of Judicature at Patna, 2024 LiveLaw (SC) 350

Article 300A – Right to property – The right to property ceased to be a fundamental right by the Constitution (Forty-Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a constitutional right under Article 300-A of the Constitution. Article 300-A provides that the State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article. (Para 18) Dharnidhar Mishra v. State of Bihar, 2024 LiveLaw (SC) 380

Article 300A – Sub-rights to Right to property – The seven sub-rights or strands constituting the right to property. These are: i) duty of the State to inform the person that it intends to acquire his property – the right to notice, ii) the duty of the State to hear objections to the acquisition – the right to be heard, iii) the duty of the State to inform the person of its decision to acquire – the right to a reasoned decision, iv) the duty of the State to demonstrate that the acquisition is for public purpose – the duty to acquire only for public purpose, v) the duty of the State to restitute and rehabilitate – the right of restitution or fair compensation, vi) the duty of the State to conduct the process of acquisition efficiently and within prescribed timelines of the proceedings – the right to an efficient and expeditious process, and vii) final conclusion of the proceedings leading to vesting – the right of conclusion. Held, the larger right to property is seen as comprising intersecting sub-rights, each with a distinct character but interconnected to constitute the whole. The sub-rights weave themselves into each other, and as a consequence, State action or the legislation that results in the deprivation of private property must be measured against this constitutional net as a whole, and not just one or many of its strands. Further held, noncompliance of these will amount to violation of the right, being without the authority of law. These sub-rights of procedure have been synchronously incorporated in laws concerning compulsory acquisition and are also recognised by our constitutional courts while reviewing administrative actions for compulsory acquisition of private property. (Para 26, 28 & 29) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Right to notice – A prior notice informing the bearer of the right that the State intends to deprive them of the right to property is a right in itself; a linear extension of the right to know embedded in Article 19(1)(a). The Constitution does not contemplate acquisition by ambush. The notice to acquire must be clear, cogent and meaningful. (Para 30.1) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Right to be heard – It is the right of the property-bearer to communicate his objections and concerns to the authority acquiring the property. This right to be heard against the proposed acquisition must be meaningful and not a sham. (Para 30.2) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Right to a reasoned decision – It is incumbent upon the authority to take an informed decision and communicate the same to the objector. The declaration is mandatory, failing which, the acquisition proceedings will cease to have effect. (Para 30.3) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Duty to acquire only for public purpose – The acquisition must be for a public purpose is inherent and an important fetter on the discretion of the authorities to acquire. Further, the decision of compulsory acquisition of land is subject to judicial review and the Court will examine and determine whether the acquisition is related to public purpose. If the court arrives at a conclusion that that there is no public purpose involved in the acquisition, the entire process can be set-aside. (Para 30.4) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Right of restitution or fair compensation – A person's right to hold and enjoy property is an integral part to the constitutional right under Article 300A. Deprivation or extinguishment of that right is permissible only upon restitution, be it in the form of monetary compensation, rehabilitation or other similar means. Compensation has always been considered to be an integral part of the process of acquisition. Fair and reasonable compensation is the sine qua non for any acquisition process. (Para 30.5) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Right to an efficient and expeditious process – It is necessary for the administration to be efficient in concluding the process and within a reasonable time. This obligation must necessarily form part of Article 300A. (Para 30.6) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Article 300A – The Right of conclusion – The culmination of an acquisition process is not in the payment of compensation, but also in taking over the actual physical possession of the land. If possession is not taken, acquisition is not complete. With the taking over of actual possession after the normal procedures of acquisition, the private holding is divested and the right, title and interest in the property, along-with possession is vested in the State. The obligation to conclude and complete the process of acquisition is also part of Article 300A. (Para 30.7) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Remission – Appellant granted liberty to prefer an appropriate representation addressed to the State Government praying for remission of sentence. Considering the fact that the appellant has undergone almost 11 years of imprisonment so far i.e. almost half of his life lived so far has been spent undergoing the ordeal of the criminal prosecution. Held, when a crime is committed, a variety of factors are responsible for making the offender commit the crime. Those factors may be social and economic, may be the result of value erosion or parental neglect; may be because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations. (Para 85 & 86) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344

The decision of the Supreme Court enunciating a principle of law is applicable to all cases irrespective of the stage of pendency thereof because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. (Para 16) Bhumikaben N. Modi v. Life Insurance Corporation of India, 2024 LiveLaw (SC) 365

Consumer Protection Act, 1986

Contract – Acceptance of the policy by the insurer – The First Premium Receipt would justify drawing of presumption of acceptance of the policy – Held, all the circumstances discussed above justify the conclusion of acceptance of the proposal prior to the death of 'the deceased'. Held, no material irregularity or illegality could be found in the conclusions drawn with regard to the acceptance of proposal by the District Forum which was confirmed by the State Commission. There was absolutely no reason for NCDRC to upturn the concurrent orders and to order for the dismissal of the complaint. Hence, appeal is allowed. (Para 25, 26 & 27) Bhumikaben N. Modi v. Life Insurance Corporation of India, 2024 LiveLaw (SC) 365

(i) The very purpose and object of the CP Act 1986 as re-enacted in 2019 was to provide protection to the consumers from unfair trade practices and unethical business practices, and the Legislature never intended to include either the Professions or the services rendered by the Professionals within the purview of the said Act of 1986/2019. (ii) The Legal Profession is sui generis i.e. unique in nature and cannot be compared with any other Profession. (iii) A service hired or availed of an Advocate is a service under “a contract of personal service,” and therefore would fall within the exclusionary part of thedefinition of “Service” contained in Section 2 (42) of the CP Act 2019. (iv) A complaint alleging “deficiency in service” against Advocates practising Legal Profession would not be maintainable under the CP Act, 2019. (Para 42) Bar of Indian Lawyers v. D.K.Gandhi PS National Institute of Communicable Diseases, 2024 LiveLaw (SC) 372

2(1)(b) – Complainant – To file a complaint, one must be a complainant and for one to be a complainant, he must be a consumer. If a person fails to come within the definition of a consumer, he cannot be a complainant and therefore, such person cannot file a complaint under the Act. (Para 17) Shriram Chits (India) Pvt. Ltd. v. Raghachand Associates, 2024 LiveLaw (SC) 368

Section 2(7) – Onus of proof – The onus of proving the first part i.e. that the person had bought goods/availed services for a consideration, rests on the complainant himself. The onus of proving that the person falls within the carve out, i.e. to exclude the complainants from availing benefits under the Act, must necessarily rest on the service provider and not the complainant. Only if, the service provider discharges its onus of showing that the service was availed, in fact for a commercial purpose, does the onus shift back to the complainant to bring its case within the third part, i.e. the Explanation (a) to Section 2(7) – to show that the service was obtained exclusively for the purpose of earning its livelihood by means of self-employment. This is in sync with the general principle embodied in Section 101 and 102 of the Evidence Act that 'one who pleads must prove'. Since it is always the service provider who pleads that the service was obtained for a commercial purpose, the onus of proving the same would have to be borne by it. Hence, the onus to prove that the service was obtained for a commercial purpose is on the service provider. (Para 20, 21 & 22) Shriram Chits (India) Pvt. Ltd. v. Raghachand Associates, 2024 LiveLaw (SC) 368

Section 2(7)(i) – Consumer – Maintainability of complaint in question – Whether the service obtained by the complainant was for a commercial purpose? – Held, the OP has merely pleaded in its version that the complainant does not satisfy the definition of consumer since the service was obtained for a commercial purpose. No evidence has been led to probabilise its case other than merely restating its claim on affidavit. It is now well too settled that a plea without proof and proof without plea is no evidence in the eyes of law. Held, not addressing merits of the issue as three forums have concurred in their finding that there was proved deficiency of service. Hence, appeal is dismissed. (Para 18, 23 & 24) Shriram Chits (India) Pvt. Ltd. v. Raghachand Associates, 2024 LiveLaw (SC) 368

Section 21 (b) – Power of National Consumer Disputes Redressal Commission (NCDRC) to reverse order in exercise of revisional jurisdiction – Held, in the absence of anything suggesting that the State Commission had acted in the exercise of its jurisdiction illegally or with materially irregularity, interference with an order of the State Commission in exercise of the limited revisional power under Section 21 (b) of the Act, by NCDRC, is without rhyme or reason and cannot be sustained. (Para 27) Bhumikaben N. Modi v. Life Insurance Corporation of India, 2024 LiveLaw (SC) 365

Contract

Contract Act, 1872; Section 202 – Contract of agency – Transfer of power of attorney – Right to continue proceedings – The original contractor had assigned all the rights and liabilities arising out of the said contract in favour of the appellant via an assignment deed. Held, Since the appellant had an interest in the said contract, he was is entitled to continue with the proceedings in spite of the death of the original contractor. Held, the learned trial Judge rightly construing this position, allowed the application of the appellant. Further held, the learned Single Judge failed to take into consideration that on account of the assignment deed, an interest accrued in the said contract in favour of the appellant. Hence, the impugned order is set aside. (Para 15, 16, 18 & 22) P. Seshareddy v. State of Karnataka, 2024 LiveLaw (SC) 379

Life insurance – Object – To ensure absolute security to the policy-holder in the matter of his life insurance protection. (Para 28) Bhumikaben N. Modi v. Life Insurance Corporation of India, 2024 LiveLaw (SC) 365

Corruption

The contention that the commitments by a political party in its manifesto, which eventually lead to direct or indirect financial help to the public at large, will also amount to corrupt practice by a candidate of that party, is too far-fetched and cannot be accepted. Shashanka J. Sreedhara v. B.Z. Zameer Ahmed Khan, 2024 LiveLaw (SC) 410

Criminal Law

Bail order is challenged – Held, respondent having been enlarged on bail conditionally and the conditions so stipulated having not been violated – There are no overwhelming material on record to set aside the order granting bail which outweighs the liberty granted by the High Court. Further held, the appellant-state having not sought for cancellation of the bail would be a prime reason for the court to not entertain the appeal. Hence, interference in impugned bail order is not warranted. (Para 16, 17) Union of India v. Mrityunjay Kumar Singh, 2024 LiveLaw (SC) 367

Entries in History Sheet challenged – Direction given to state governments and police authorities – Held, the police authorities may consider the desirability of ensuring that no mechanical entries in History Sheet are made of innocent individuals, simply because they happen to hail from the socially, economically and educationally disadvantaged backgrounds, along with those belonging to Backward Communities, Scheduled Castes & Scheduled Tribes. All the State Governments are therefore expected to take necessary preventive measures to safeguard such communities from being subjected to inexcusable targeting or prejudicial treatment. Further held, a periodic audit mechanism overseen by a senior police officer, as directed for the NCT of Delhi, will serve as a critical tool to review and scrutinize the entries made, so as to ascertain that these are devoid of any biases or discriminatory practices. (Para 14 & 16) Amanatullah Khan v. Commissioner of Police, 2024 LiveLaw (SC) 351

Grant of interim bail/release – Interim bail is granted as per facts of each case – While examining the question of grant of interim bail/release, the courts always take into consideration the peculiarities associated with the person in question and the surrounding circumstances and to ignore the same would be iniquitous and wrong – Further held, once the matter is sub-judice and the questions relating to legality of arrest are under consideration, a more libertarian view is justified, in the background that the 18th Lok Sabha General Elections are being held – The 18th Lok Sabha General Elections is an intervening factor which has prompted the court to consider the interim bail application of the appellant – The appellant is directed to be released on interim bail. (Para 8, 14 & 15) Arvind Kejriwal v. Directorate of Enforcement, 2024 LiveLaw (SC) 363

History Sheet entries challenged – Applicability of amended standing order – Held, as per the amended Standing Order, in the column of “relations and connection” no details of any minor relatives, i.e., son, daughter, siblings shall be recorded, unless there is evidence that such minor, has or earlier had, afforded shelter to the offender. Further held, the amended provision mandates that Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015 shall be meticulously followed, whereunder there is a prohibition on disclosing the identity of a child in conflict with law or a child in need of care and protection or a child victim or a witness of a crime through a report etc. Held, the amended Standing Order be given effect in the present case. (Para 6, 7 & 10) Amanatullah Khan v. Commissioner of Police, 2024 LiveLaw (SC) 351

Debt Recovery

Whether debts, which cannot be recovered by filing civil suits as they are time-barred under the Limitation Act 1963, can be recovered by invoking other remedies under special statutes for debt recovery ? The matter needs to be placed before the Hon'ble Chief Justice of India to constitute an appropriate three-judge bench. K.P. Khemka v. Haryana State Industrial and Infrastructure Corporation Ltd., 2024 LiveLaw (SC) 357

Election

General Elections supply the vis viva to a democracy – Held, grant of interim bail/release on account of general election would not be placing the politicians in a benefice position compared to ordinary citizens of this country. (Para 8) Arvind Kejriwal v. Directorate of Enforcement, 2024 LiveLaw (SC) 363

Electricity

Electricity Act, 2003; Section 14(b) and Electricity Licence (Additional Requirements of Capital Adequacy, Creditworthiness and Code of Conduct) Rules, 2005; Rule 3 and Andhra Pradesh Electricity Regulatory Commission (Distribution Licence) Regulations, 2013; Regulation 12 – Whether a deemed distribution licensee is conditional upon the appellant satisfying the requirements of section 14 of the Electricity Act which provides for compliance with additional requirements like capital adequacy? – Held, application of Regulation 12 does not extend to applicants who are otherwise deemed licensees. The interpretation of regulation 12 as requiring additional capital infusion for an applicant for acceptance of a deemed licensee status appears to be at odds with the language and intent of the 2013 Regulations. Hence, Telangana State Electricity Regulatory Commission (TSERC) in interpreting regulation 12 that it applies to a person who is a deemed licensee, has aimed to achieve indirectly what it could not directly. Regulation 12 does not apply to a deemed licensee because the primary legislation, the Electricity Act, under section 14(b), confers deemed licensee status upon Special Economic Zone (SEZ) developers without imposing any specific conditions and the 2013 Regulations make a clear distinction between an applicant seeking a licence [as defined under regulation 2(d)] and a deemed distribution licensee seeking recognition as such [as defined under regulation 2(h)]. Regulation 12 pertains solely to regular distribution licensees as defined under regulation 2(h), not to deemed licensees. Therefore, the recognition of the status of a deemed distribution licensee cannot hinge on compliance with rule 3(2) of the 2005 Rules read with regulation 12 of the 2013 Regulations. (Para 26, 29 & 34) Sundew Properties Ltd. v. Telangana State Electricity Regulatory Commission, 2024 LiveLaw (SC) 393

Electricity Act, 2003; Section 181 – Power on the State Commissions to make Regulations – Such regulations must be consistent with the provisions of the primary enactment and the rules framed thereunder generally. (Para 33) Sundew Properties Ltd. v. Telangana State Electricity Regulatory Commission, 2024 LiveLaw (SC) 393

Electricity Regulatory Commission (Distribution Licence) Regulations, 2013 (Andhra Pradesh); Regulation 49 – Regulation 49, situated within Chapter-4 [General Conditions of Distribution Licence] of the 2013 Regulations, specifies that “these general conditions shall apply to distribution licensees and to all deemed distribution licensees”. A straightforward reading reveals that the term 'general conditions' in regulation 49 pertains exclusively to the general conditions outlined in Chapter-4. Held, TSERC's reliance on regulation 49 to enforce the applicability of regulation 12 appears to be flawed and by no stretch of imagination could the scope of this provision be widened so as to include within its ambit regulation 12, which forms part of Chapter-3 [Procedure for Grant of Distribution Licence] of the 2013 Regulations. (Para 36) Sundew Properties Ltd. v. Telangana State Electricity Regulatory Commission, 2024 LiveLaw (SC) 393

Environment Law

Environmental regulations is to ensure that developmental projects, are undertaken in a manner that minimizes adverse ecological impacts and safeguards the well-being of both the environment and local communities – Paragraph 2 of the notification dated 14 September 2006 requires prior Environmental Clearance “before any construction work or preparation of land by the project management is carried out except for the securing of land”. Held, the authorities, have acted in violation of the provisions contained in Para 2 of the notification by carrying out an extensive clearance at the site even in the absence of an Environmental Clearance. Hence, impugned dismissal order of National Green Tribunal is set aside and appeal is allowed. (Para 15, 19 & 25) Tapas Guha v Union of India, 2024 LiveLaw (SC) 370

Policy decision in conflict with environmental regulations – The decision on whether an airport is situated at a particular place is a matter of policy. However, when the law prescribes specific norms for carrying out activities requiring an Environmental Clearance, those provisions have to be strictly complied with. The decision to establish an airport must be executed within the confines of legal frameworks designed to protect the environment and ensure responsible resource management. Failure to adhere to these norms not only undermines the integrity of environmental governance but also risks long-term environmental degradation and societal discord. (Para 21) Tapas Guha v Union of India, 2024 LiveLaw (SC) 370

Eviction

While upholding the demolition drive of the Lucknow Development Authority (LDA) against unauthorized constructions in the Akbarnagar area of Lucknow city, the Supreme Court clarified that no slum dweller should be evicted without being given alternative accommodation. Shakeel Ahmad v. State of Uttar Pradesh, 2024 LiveLaw (SC) 398

Evidence

Credibility of Evidence – Held, the surveyor's report is a credible evidence and the court may rely on it until a more reliable evidence is brought on record. (Para 23) United India Insurance Co. Ltd. v. Hyundai Engineering & Construction Co. Ltd., 2024 LiveLaw (SC) 409

Evidence Act, 1872

Circumstantial evidence – Held, the statement of witness by itself provides a complete chain of circumstantial evidence sufficient to establish the guilt of the accused appellant. The prosecution has established the chain of incriminating circumstantial evidence pointing exclusively towards the guilt of the accused appellant and totally inconsistent with his innocence or the involvement of any other person in the crime. (Para 38 & 48) Sukhpal Singh v. NCT of Delhi, 2024 LiveLaw (SC) 359

Duty of public prosecutor to cross-examine hostile witness – It is the duty of the Public Prosecutor to cross-examine a hostile witness in detail and try to elucidate the truth & also establish that the witness is speaking lie and has deliberately resiled from his police statement recorded under Section 161 of the Cr.P.C. A good, seasoned and experienced Public Prosecutor will not only bring the contradictions on record, but will also cross-examine the hostile witness at length to establish that he or she had actually witnessed the incident as narrated in his/her police statement. Only bringing the contradictions on record and thereafter proving such contradictions through the evidence of the Investigating Officer is not sufficient. (Para 69) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344

Evidentiary value of a hostile witness – The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. It was further held that the evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. (Para 9) Selvamani v. State, 2024 LiveLaw (SC) 358

Hostile witness – Appreciation of the evidence is challenged – The prosecutrix and her mother and aunt in their cross-examination, which was recorded three and a half months after the recording of the examination-in-chief, have turned around and not supported the prosecution case. Held, on account of a long gap between the examination-in-chief and cross examination, the witnesses were won over by the accused and they resiled from the version as deposed in the examination-in-chief which fully incriminates the accused. However, when the evidence of the victim as well as her mother and aunt is tested with the FIR, the statement recorded under Section 164 CrPC and the evidence of the Medical Expert), there is sufficient corroboration to the version given by the prosecutrix in her examination-in-chief. Hence, no reason to interfere with the concurrent findings of fact recorded by the trial court as well as the High Court on appreciation of the evidence. (Para 8, 13 & 15) Selvamani v. State, 2024 LiveLaw (SC) 358

Prima facie means “at first sight”, “at first view”, or “based on first impression” – “Evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the case or charges against the defendant. If they cannot present prima facie evidence, the initial claim may be dismissed without any need for a response by other parties. (Para 49) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344

Section 8 & 27 – Conduct – The conduct of the appellant in leading the Investigating Officer and others to a drain nearby his house and the discovery of the knife from the drain is a relevant fact. It would be admissible as 'conduct' under Section 8 irrespective of the fact whether the statement made by the accused falls within the purview of Section 27 of the Evidence Act. The conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction is only one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect. (Para 56 & 61) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344

Section 14 – State of mind – Held, the accused went absconding after the murder and could not be traced out for almost 10 years which is also a strong circumstance pointing towards his guilty state of mind. (Para 45) Sukhpal Singh v. NCT of Delhi, 2024 LiveLaw (SC) 359

Section 32(1) – Dying Declaration – Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible. Once a dying declaration is found to be authentic inspiring confidence of the court, then the same can be relied upon and can be the sole basis for conviction without any corroboration. However, before accepting such a dying declaration, court must be satisfied that it was rendered voluntarily, it is consistent and credible and that it is devoid of any tutoring. Held, the contents of the dying declaration have been proved by prosecution witnesses. Certain inconsistencies in evidence of witness may take place due to the time gap of 5 years from the date of incident to the date of evidence given. Further held, though there are inconsistencies and improvements in the version of the prosecution witnesses, there is however convergence with the core of the narration of the deceased made in the dying declaration and the medical history recorded by the doctor. Hence, dying declaration is accepted as a valid piece of evidence and it clearly establishes the guilt of the appellant beyond all reasonable doubt. (Para 24, 25 & 35) Rajendra Ramdas Kolhe v. State of Maharashtra, 2024 LiveLaw (SC) 406

Section 105 – Presumption – Burden to prove case within exception – It is for the accused to show the applicability of Exception 4 of Section 302. (Para 78) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344

Section 106 – Burden of proof – The burden is upon the accused to prove. Held, the bald plea of denial offered by the accused is not sufficient to absolve him of the burden cast upon him. Failure of the accused to offer explanation for the homicidal death of his wife in the night time when only the accused and deceased were present in the house lead to the interference of guilt of accused. (Para 46 & 47) Sukhpal Singh v. NCT of Delhi, 2024 LiveLaw (SC) 359

Section 106 – Burden of proof – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The word “especially” means facts that are pre-eminently or exceptionally within the knowledge of the accused. Section 106 of the Evidence Act is an exception to Section 101 of the Evidence Act. Section 101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish the facts which are, “especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience”. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused. (Para 35, 36 & 50) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344

Section 145 – To contradict the witness – While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need of further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, the contradiction is merely brought on record, but it is yet to be proved. (Para 66) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344

Section 165 and Criminal Procedure Code, 1973; Section 311 – The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the witnesses. The judge has uninhibited power to put questions to the witness either during the chief examination or cross-examination or even during re-examination for this purpose. The trial judge must exercise the vast powers conferred under Section 165 of the Evidence Act and Section 311 of the Cr.P.C. respectively to elicit all the necessary materials by playing an active role in the evidence collecting process. (Para 69, 73 & 74) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344

Family Law

Custody of minor children – Parental Alienation Syndrome (PAS) – It is challenged that the Minor Children have been influenced against the Respondent and the preference indicated by the Minor Children ought not to be considered representative of the their true emotions. Held, courts ought not to prematurely and without identification of individual instances of 'alienating behaviour', label any parent as propagator and / or potential promoter of such behaviour. The aforesaid label has far-reaching implications which must not be imputed or attributed to an individual parent routinely. Further held, the Minor Children could not be said to have exhibited any indication of 'parental alienation' i.e., there was no overt preference expressed by the Minor Children between the parents and thus, the foundation for any claim of parental alienation was clearly absent. The High Court proceeded on an unsubstantiated assumption of parental alienation and was not justified in interfering with the order granting custody of the Minor Children to the Appellant. (Para 17, 22, 23, 24 & 26) Col. Ramneesh Pal Singhv v. Sugandhi Aggarwal, 2024 LiveLaw (SC) 356

Custody of minor children – Decided on the basis of – (i) The socioeconomic and educational opportunities which may be made available to the Minor Children; (ii) healthcare and overall wellbeing of the children; (iii) the ability to provide physical surroundings conducive to growing adolescents; (iv) the preference of the Minor Children as mandated under Section 17(3) of the Act and also (v) the stability of surrounding(s) of the Minor Children. (Para 12) Col. Ramneesh Pal Singhv v. Sugandhi Aggarwal, 2024 LiveLaw (SC) 356

Custody of minor children – Welfare – The Court must construe the term 'welfare' in its widest sense i.e., the consideration by the Court would not only extend to moral and ethical welfare but also include the physical well-being of the minor children. (Para 11) Col. Ramneesh Pal Singhv v. Sugandhi Aggarwal, 2024 LiveLaw (SC) 356

Guardians and Wards Act, 1890

Section 17(3) – Guardianship – Importance of preference indicated by minor children – The desire / preference of the children to continue to reside with the Appellant, although in itself cannot be determinative of custody of the children, but it must be given due consideration on account of it being a factor of utmost importance. (Para 14) Col. Ramneesh Pal Singhv v. Sugandhi Aggarwal, 2024 LiveLaw (SC) 356

Hindu Succession Act, 1956

Section 14(1) – Succession rights of the widow on the joint Hindu family property – The Hindu female must not only be possessed of the property but she must have acquired the property and such acquisition must be either by way of inheritance or devise, or at a partition or “in lieu of maintenance or arrears of maintenance” or by gift or be her own skill or exertion, or by purchase or by prescription. Held, it becomes clear that the widow was never in possession of the suit property as the civil suit was filed by her claiming relief of title and possession was dismissed by civil Court and was never challenged. Since, Smt. The widow was never in possession of the suit property, the Revenue suit for partition claiming absolute ownership under Section 14(1) of the HSA could not be maintained by her adopted son, by virtue of inheritance. (Patra 24, 25 & 26) Mukatlal v. Kailash Chand, 2024 LiveLaw (SC) 388

Industrial Establishment

Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu); Section 3 – Workmen eligible for permanent status under Section 3 of the Act – Applicability of the Act – Held, both requirements, of the establishment being covered under the definition of industrial establishment as provided and that of the employee having uninterruptedly continued in service for 480 days or more for 24 months, having been met. Held, the Act would apply to the parties to dispute. Further held, there is no reason to disturb the finding of the Inspector of Labour which concluded that the members of the respondent-Union be given permanent employment. When an issue stands already decided then putting those who enjoy an order in their favour, once more of having to re-establish their claim, would be unjustified. Hence, the order of Inspector of Labour be complied with. (Para 27 & 28) Tamil Nadu Medical Services Corporation Ltd. v. Tamil Nadu Medical Services Corporation Employees Welfare Union, 2024 LiveLaw (SC) 402

Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (Tamil Nadu); Section 7 – Applicability of Act – Exemption of establishments and their workmen engaged exclusively in the construction of buildings and the like or other construction work be it structural, mechanical, or electrical. Held, the construction to be undertaken by the Corporation, is only one of the many activities to be undertaken by it. Hence, it would not allow the Corporation to wash its hands off the responsibilities or obligations under the Act. (Para 23 & 24) Tamil Nadu Medical Services Corporation Ltd. v. Tamil Nadu Medical Services Corporation Employees Welfare Union, 2024 LiveLaw (SC) 402

Insurance Contract

Contract of Indemnity – Insurance contract – Insurance is a contract of indemnification, being a contract for a specific purpose, which is to cover defined losses. Essentially, the insurer cannot be asked to cover a loss that is not mentioned. (Para 16) United India Insurance Co. Ltd. v. Hyundai Engineering & Construction Co. Ltd., 2024 LiveLaw (SC) 409

Insurance contract – Exclusion clause of Insurance contract – Exclusion clauses in insurance contracts are interpreted strictly and against the insurer as they have the effect of completely exempting the insurer of its liabilities. Such a clause cannot be interpreted so that it conflicts with the main intention of the insurance. (Para 17) United India Insurance Co. Ltd. v. Hyundai Engineering & Construction Co. Ltd., 2024 LiveLaw (SC) 409

Insurance contract – Burden of proof for an exclusionary – The burden of proving the applicability of an exclusionary clause lies on the insurer. It is the duty of the insurer to plead and lead cogent evidence to establish the application of such a clause. The evidence must unequivocally establish that the event sought to be excluded is specifically covered by the exclusionary clause. (Para 17) United India Insurance Co. Ltd. v. Hyundai Engineering & Construction Co. Ltd., 2024 LiveLaw (SC) 409

Interpretation of Statutes

Concept of reading up and reading down – Held, if a law is unclear about whether it applies to certain types of businesses, a court may choose to read down the statute to only include those businesses explicitly mentioned in the text. On the other hand, reading up involves interpreting a statute broadly, extending its scope or application beyond what is expressly stated in the text. Reading up is a concept that is invoked with great caution within our legal framework because it can lead to judicial activism or judicial overreach, where courts expand the reach of laws beyond what the legislature intended. The practice of reading up a provision can only be justified when it aligns with legislative intent, maintains the fundamental character of the law, and ensures that the resulting interpretation remains consistent with the original context to which the law applies. This holds especially true for subordinate legislation, which require greater scrutiny in this regard. Reading up a provision of subordinate legislation in a manner that it militates against the primary legislation is not permissible. (Para 30 & 32) Sundew Properties Ltd. v. Telangana State Electricity Regulatory Commission, 2024 LiveLaw (SC) 393

Juvenile Justice (Care and Protection) Act, 2015

Section 7 – Procedure in relation to the Board – The Principal Magistrate passed the order, that the child in conflict with Law (CCL) is to be tried by the Children's Court as an adult. Held, at the time of final disposal of the case or making an order under Section 18(3) of the Act, there shall be at least two members including the Principal Magistrate. When the arguments in the matter were heard with reference to the order under Section 18(3) of the Act, the Board consisted of a Principal Magistrate and a Member. Further held, even if the other member of the Board had not signed the order and had merely mentioned that he had a dissenting view, without any reasons being recorded, the order of the Principal Magistrate will prevail. Order passed by the Board as signed by the Principal Magistrate was final. However, the same is subject to right of appeal of the aggrieved party. (Para 15.2, 15.3, 15.5 & 18) Child in Conflict with Law through his Mother v. State of Karnataka, 2024 LiveLaw (SC) 353

Section 14(3) & 15 – Time limit for preliminary assessment is directory in nature – Section 15 of the Act enables the Board to make preliminary assessment into heinous offences alleged to have been committed by a child between 16 and 18 years of age, with regard to his mental and physical capacity to commit such an offence, ability to understand the consequences of the offence and the circumstances in which the offence was allegedly committed. Section 14(3) of the Act provides that the preliminary assessment in terms of Section 15 is to be completed by the Board within a period of three months from the date of first production of the child before the Board. Held, the time so provided in Section 14(3) cannot be held to be mandatory, as no consequences of failure have been provided. Where consequences for default for a prescribed period in a Statute are not mentioned, the same cannot be held to be mandatory. (Para 9, 9.2, 9.14, 9.15 & 18) Child in Conflict with Law through his Mother v. State of Karnataka, 2024 LiveLaw (SC) 353

Section 101(1), 101(2) & 15 – Time for filing appeal against order of the Board under Section 15 – Appeal, under Section 101(2) of the Act against an order of the Board passed under Section 15 of the Act, can be filed within a period of 30 days. The appellate court can entertain the appeal after the expiry of the aforesaid period, provided sufficient cause is shown. (Para 13.1 & 18) Child in Conflict with Law through his Mother v. State of Karnataka, 2024 LiveLaw (SC) 353

Section 101(2) and Juvenile Justice (Care and Protection of Children) Rules, 2016 – 'Children's Court' or the 'Sessions Court' – Section 101(2) of the JJ Act provides that against an order passed by the Board the appeal is maintainable before the Court of Sessions – Held, the words 'Children's Court' and 'Court of Sessions' in Juvenile Justice (Care and Protection of Children) Act, 2015 and the 2016 Rules shall be read interchangeably – Where Children's Court is available, even if the appeal is said to be maintainable before the Sessions Court, it has to be considered by the Children's Court. Whereas where no Children's Court is available, the power is to be exercised by the Sessions Court. (Para 12.2 & 18) Child in Conflict with Law through his Mother v. State of Karnataka, 2024 LiveLaw (SC) 353

Section 102 – Maintainability of revision petition – Section 102 of the Act enables the High Court to exercise its revisional powers with reference to any order or proceeding by the Board or the Children's Court. The High Court can exercise its revisional powers for satisfying itself as to the legality or propriety of any order and may pass such order in relation thereto as it thinks fit. (Para 10.2, 10.4 & 18) Child in Conflict with Law through his Mother v. State of Karnataka, 2024 LiveLaw (SC) 353

The plea of juvenility of the accused may be raised before any court at any stage, even after final disposal of the case, such a plea of juvenility couldn't be rejected without conducting a proper inquiry. Delay in raising the plea of juvenility cannot be a ground for rejection of such a claim. For making a claim with regard to juvenility after conviction, the claimant must produce some material which prima facie may satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility. (Para 10 - 13) Rahul Kumar Yadav v. State of Bihar, 2024 LiveLaw (SC) 341

The Supreme Court prescribes 30 days time limit to prefer appeal against the juvenile justice board preliminary assessment order. Rahul Kumar Yadav v. State of Bihar, 2024 LiveLaw (SC) 341

Legal Maxim

'Nullus commodum capere potest de injuria sua propria' – It means that no man can take advantage of his own wrong. He who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. A wrong doer ought not to be permitted to make profit out of his own wrong. (Para 18 & 19) Municipal Committee Katra v. Ashwani Kumar, 2024 LiveLaw (SC) 373

Limitation

Plea of limitation – Held, even if the plea of limitation is not set up as a defence, the Court has to dismiss the suit if it is barred by limitation. (Para 16) Shivraj Reddy v. S. Raghuraj Reddy, 2024 LiveLaw (SC) 411

Suit of specific performance preferred on the last date of limitation – Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring time limits stipulated in the agreement. The courts will also frown upon suits which are not filed immediately after the breach/refusal. Held, the suit having been preferred after a long delay, the plaintiff is not entitled for specific performance. (Para 16 & 18) Rajesh Kumar v. Anand Kumar, 2024 LiveLaw (SC) 407

The period of limitation for filing a suit for rendition of account is three years from the date of dissolution. Held, the firm dissolved in year 1984 by virtue of death of the partner and the suit came to be filed in the year 1996 which was not within a period of three years hence, time-barred, Further held, the learned Single Judge was justified in rejecting the suit on grounds of being barred by limitation. (Para 20) Shivraj Reddy v. S. Raghuraj Reddy, 2024 LiveLaw (SC) 411

Medical Termination of Pregnancy Act, 1971

Section 3(1) – Opinion of the Registered Medical Practitioner (RMP) and medical board under the MTP Act – Section 3(1) protects the registered medical practitioner from penal provisions against abortion, under the Indian Penal Code, if it is carried out as per the MTP Act. The MTP Act requires and empowers the RMP to form an opinion, in good faith, on whether a pregnancy may be terminated. The medical board, in forming its opinion on the termination of pregnancies must not restrict itself to the criteria under Section 3(2-B) of the MTP Act and must also evaluate the physical and emotional wellbeing of the pregnant person furnishing full details to the court. Further, while issuing a clarificatory opinion the medical board must provide sound and cogent reasons for any change in opinion and circumstances – Held, the medical board in its clarificatory report restricted itself to the criteria under Section 3(2-B) of the MTP Act and failed to form an opinion on the impact of the pregnancy on the physical and mental health of the pregnant person. Further held, the delays caused by a change in the opinion of the medical board or the procedures of the court must not frustrate the fundamental rights of pregnant people. (Para 21, 22, 23, 25, 26, 29 & 31) A (Mother of X) v. State of Maharashtra, 2024 LiveLaw (SC) 349

Section 3(4)(a) – Consent of guardian in case of abortion of a minor – The guardians of 'X', namely her parents, have consented for taking the pregnancy to term. This is permissible as 'X' is a minor and the consent of the guardian is prescribed under Section 3(4)(a) of the MTP Act. The order of this court allowing 'X' to terminate her pregnancy is recalled. (Para 32, & 33) A (Mother of X) v. State of Maharashtra, 2024 LiveLaw (SC) 349

Motor Vehicle Act, 1988

Section 173 – Appeal – A person dissatisfied with the amount of compensation received can file an appeal. (Para 12) Alifiya Husenbhai Keshariya v. Siddiq Ismail Sindhi, 2024 LiveLaw (SC) 414

Municipal Corporation

Kolkata Municipal Corporation Act, 1980 – Section 352 – Procedure of acquisition is mandatory to be followed – Section 352 is bereft of any procedure whatsoever before compulsorily acquiring private property. Held, compulsory acquisition will be unconstitutional if proper procedure is not established or followed before depriving a person of their right to property. The constitutional right to property comprises of seven sub-rights or procedures such as the right to notice, hearing, reasons for the decision, to acquire only for public purpose, fair compensation, efficient conduct of the procedure within timelines and finally the conclusion. Held, as Section 352 does not provide for these sub-rights or procedures, it can never be a valid power of acquisition. Hence, acquisition of land under Section 352 is rejected. (Para 2 & 24) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Kolkata Municipal Corporation Act, 1980 – Section 352 & 537 – Power of acquisition – Section 352 empowers the Municipal Commissioner to identify the land required for the purpose of opening of public street, square, park, etc. and under Section 537, the Municipal Commissioner has to apply to the Government to compulsorily acquire the land. Upon such an application, the Government may, in its own discretion, order proceedings to be taken for acquiring the land. Held, section 352 is, not the power of acquisition. Hence, the submission that Section 352 enables the Municipal Commissioner to acquire land is rejected. The appellant-Corporation acquiring land under Section 352 acted in blatant violation of statutory provisions. (Para 22) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Kolkata Municipal Corporation Act, 1980 – Section 363 – Section 363 relates to payment of compensation upon an agreement and not for compulsory acquisition. (Para 23) Kolkata Municipal Corporation v. Bimal Kumar Shah, 2024 LiveLaw (SC) 382

Muslim Law

Can muslim women claim equality in succession ? Can Will be executed for the entire property as per Mohammedan law? Supreme Court to decide. Tarsem v. Dharma, 2024 LiveLaw (SC) 396

Narcotic Drugs and Psychotropic Substances Act 1985

Section 63 – Order of confiscation and auction of article is challenged – The court cannot order confiscation of an article until the expiry of one month from the date of seizure or without hearing any person who may claim any right thereto. Held, the appellant is the registered owner of the article and has a right to be heard by the court before the final order of confiscation is passed and the seized vehicle is put to auction. Hence, the order passed by the trial court to the extent it orders confiscation and auction of the dumper is set aside. (Para 13, 14 & 15) Pukhraj v. State of Rajasthan, 2024 LiveLaw (SC) 395

Negotiable Instruments Act, 1881

Section 138 – Maintainability of suit – Criminal law can be set in motion by anyone, even by a stranger or legal heir. A complaint under Section 138, preferred by the Power of Attorney Holder is held maintainable and also that such Power of Attorney Holder can depose as complainant. (Para 11) Rajesh Kumar v. Anand Kumar, 2024 LiveLaw (SC) 407

Partnership Act, 1932

Section 42(c) – Dissolution of partnership on death of partner – Partnership would stand dissolved automatically on the death of the partner unless and until there was a contract between the remaining partners of the firm to the contrary. Held, there is no such averment by the respondents. Hence, the business activities even if carried on by the remaining partners of the firm, would be deemed to be carried in their individual capacity. (Para 17, 19) S. Shivraj Reddy v. S. Raghuraj Reddy, 2024 LiveLaw (SC) 411

Penal Code, 1860

Section 34 & 494 – Charged with common intention to commit offence of Bigamy – Held, in order to bring home the said charge, the complainant would be required to prima facie prove not only the presence of the accused persons, but the overt act or omission of the accused persons in the second marriage ceremony and also establish that such accused were aware about the subsisting first marriage. Held, mere presence in the marriage is not enough to establish common intention to commit offence of Bigamy. Further, there is no allegation that the accused, acted as witnesses to the second marriage having knowledge of the first marriage. Hence, the charge is not established. (Para 17 & 18) S. Nitheen v. State of Kerala, 2024 LiveLaw (SC) 385

Section 302 Exception 4 – Sudden provocation/ heat of the moment – Four conditions must be satisfied to bring the matter within Exception 4: (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in the heat of passion; and; that (iv) the assailant had not taken any undue advantage or acted in a cruel manner – Where the offender takes undue advantage or has acted in a cruel or an unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is disproportionate, that circumstance must be taken into consideration to decide whether undue advantage has been taken. Held, cannot overlook the fact that the appellant inflicted as many as twelve blows with a knife on the deceased who was unarmed and helpless. Hence, case is not one of culpable homicide not amounting to murder but the same is a case of murder. The High Court committed no error in affirming the judgment and order of conviction passed by the trial court. (Para 79, 82, 83, 84) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344

Section 494 and Criminal procedure Code, 9173; Section 216 – Bigamy – Charges framed against accused for offence of Bigamy – Held, order framing charge is erroneous on the face of the record because no person other than the spouse to the second marriage could have been charged for the offence punishable under Section 494 IPC simplicitor. Defect in framing of charge is curable and can be altered at any stage as per the provisions of Section 216 CrPC. Further held, allowing the proceedings of the criminal case to be continued against the appellants with defect in charges framed, would tantamount to gross illegality and abuse of the process of Court. Hence, all subsequent proceedings sought to be taken against the appellants are quashed and set aside. (Para 16, 21) S. Nitheen v. State of Kerala, 2024 LiveLaw (SC) 385

Section 498A – Cruelty – In all cases, where wife complains of harassment or ill-treatment, Section 498A of the IPC cannot be applied mechanically. Every matrimonial conduct, which may cause annoyance to the other or mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may not amount to cruelty. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. (Para 32) Achin Gupta v. State of Haryana, 2024 LiveLaw (SC) 343

Precedent

'Ignoring precedent a material error' : Supreme Court recalls its 2022 verdict for not considering constitution bench Judgment. Karnail Singh v. State of Haryana, 2024 LiveLaw (SC) 386

Prevention of Money Laundering Act, 2002

Once a complaint under Section 44 (1)(b) of the PMLA is filed, it will be governed by Sections 200 to 205 of the CrPC as none of the said provisions are inconsistent with any of the provisions of the PMLA. (Para 23 (a)) Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383

If the accused was not arrested by the ED till filing of the complaint, while taking cognizance on a complaint under Section 44(1)(b), as a normal rule, the Court should issue a summons to the accused and not a warrant. Even in a case where the accused is on bail, a summons must be issued. (Para 23 (b)) Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383

In the facts of this case, the appellant will complete 3½ years of incarceration on 26th May, 2024. Thus, he will complete half of the prescribed sentence. In this case, obviously the trial has not started, as the charge has not been framed. This Court has held that Section 436A of the Code of Criminal Procedure, 1973 (for short "CRPC") will apply even to a case under the PMLA. But the Court can still deny the relief owing to the ground such as where the trial was delayed at the instance of the accused. As stated earlier, here there is no occasion for the appellant to cause the delay in trial, as even charge has not been framed. Moreover, there is no other circumstance brought on record which will compel us to deny the benefit of Section 436A of the CRPC to the appellant. Ajay Ajit Peter Kerkar v. Directorate of Enforcement, 2024 LiveLaw (SC) 400

After a summons is issued under Section 204 of the CrPC on taking cognizance of the offence punishable under Section 4 of the PMLA on a complaint, if the accused appears before the Special Court pursuant to the summons, he shall not be treated as if he is in custody. Therefore, it is not necessary for him to apply for bail. However, the Special Court can direct the accused to furnish bond in terms of Section 88 of the CrPC. (Para 23 (c)) Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383

In a case where the accused appears pursuant to a summons before the Special Court, on a sufficient cause being shown, the Special Court can grant exemption from personal appearance to the accused by exercising power under Section 205 of the CrPC. (Para 23 (d)) Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383

If the accused does not appear after a summons is served or does not appear on a subsequent date, the Special Court will be well within its powers to issue a warrant in terms of Section 70 of the CrPC. Initially, the Special Court should issue a bailable warrant. If it is not possible to effect service of the bailable warrant, then the recourse can be taken to issue a nonbailable warrant. (Para 23 (e)) Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383

A bond furnished according to Section 88 is only an undertaking by an accused who is not in custody to appear before the Court on the date fixed. Thus, an order accepting bonds under Section 88 from the accused does not amount to a grant of bail;. (Para 23 (f), Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383

In a case where the accused has furnished bonds under Section 88 of the CrPC, if he fails to appear on subsequent dates, the Special Court has the powers under Section 89 read with Sections 70 of the CrPC to issue a warrant directing that the accused shall be arrested and produced before the Special Court; If such a warrant is issued, it will always be open for the accused to apply for cancellation of the warrant by giving an undertaking to the Special Court to appear before the said Court on all the dates fixed by it. While cancelling the warrant, the Court can always take an undertaking from the accused to appear before the Court on every date unless appearance is specifically exempted. When the ED has not taken the custody of the accused during the investigation, usually, the Special Court will exercise the power of cancellation of the warrant without insisting on taking the accused in custody provided an undertaking is furnished by the accused to appear regularly before the Court. When the Special Court deals with an application for cancellation of a warrant, the Special Court is not dealing with an application for bail. Hence, Section 45(1) will have no application to such an application. (Para 23 (g). Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383

When an accused appears pursuant to a summons, the Special Court is empowered to take bonds under Section 88 of the CrPC in a given case. However, it is not mandatory in every case to direct furnishing of bonds. However, if a warrant of arrest has been issued on account of nonappearance or proceedings under Section 82 and/or Section 83 of the CrPC have been issued against an accused, he cannot be let off by taking a bond under Section 88 of the CrPC, and the accused will have to apply for cancellation of the warrant. (Para 23 (h), Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383

After cognizance is taken of the offence punishable under Section 4 of the PMLA based on a complaint under Section 44 (1)(b), the ED and its officers are powerless to exercise power under Section 19 to arrest a person shown as an accused in the complaint. (Para 23 (i), Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383

If the ED wants custody of the accused who appears after service of summons for conducting further investigation in the same offence, the ED will have to seek custody of the accused by applying to the Special Court. After hearing the accused, the Special Court must pass an order on the application by recording brief reasons. While hearing such an application, the Court may permit custody only if it is satisfied that custodial interrogation at that stage is required, even though the accused was never arrested under Section 19. However, when the ED wants to conduct a further investigation concerning the same offence, it may arrest a person not shown as an accused in the complaint already filed under Section 44(1)(b), provided the requirements of Section 19 are fulfilled. (Para 23 (j), Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383

Property Law

U.P. Consolidation of Holdings Act, 1953; Section 49 – The power to declare the ownership in an immovable property can be exercised only by a Civil Court save and except when such jurisdiction is barred expressly or by implication under a law. Section 49 cannot be construed as a bar on the jurisdiction of the Civil Court to determine the ownership rights. It contemplates bar to the jurisdiction of the Civil or Revenue Court for the grant of declaration or adjudication of rights of tenure holders in respect of land lying in an area for which consolidation proceedings have commenced. Hence, the power under Section 49 cannot be exercised to take away the vested title of a tenure holder. Kalyan Singh had acquired ancestral rights as a tenure holder and was co-owner in the suit land much before the consolidation proceedings commenced. Held, the Consolidation Officer could not take away the ownership rights of Kalyan Singh which he had already inherited much before the commencement of the consolidation proceedings. Order passed by the Consolidation Officer has rightly been held to be null and void and without any jurisdiction. (Para 9, 12 & 13) Prashant Singh v. Meena, 2024 LiveLaw (SC) 355

Mesne profits become payable on continuation of possession after 'expiry' of lease – A tenant who once entered the property in question lawfully, continues in possession after his right to do so stands extinguished, is liable to compensate the landlord for such time period after the right of occupancy expires. The effect of the words 'determination', 'expiry', 'forfeiture' and 'termination' would, subject to the facts applicable, be similar, i.e., when any of these three words are applied to a lease, the rights of the lessee/tenant stand extinguished and mesne profit would be payable. Held, the very purpose for which a property is rented out, is to ensure that the landlord by way of the property is able to secure some income. If the income remains static over a long period of time, then such a landlord would be within his rights, subject of course, to the agreement with their tenant, to be aggrieved by the same. Hence, deposit of the amount claimed by the petitioner-applicant is must to ensure complete justice inter se the parties. (Para 19, 20 & 21) Bijay Kumar Manish Kumar Huf v. Ashwin Bhanulal Desai, 2024 LiveLaw (SC) 413

Tenant at sufferance – Such a tenant is a person who enters upon a land by lawful title, but continues in possession after the title has ended without statutory authority and without obtaining consent of the person then entitled. (Para 16.2) Bijay Kumar Manish Kumar Huf v. Ashwin Bhanulal Desai, 2024 LiveLaw (SC) 413

Representation of Peoples Act, 1951

Code of Civil procedure, 1908; Order VIII Rule 9 and Representation of Peoples Act, 1951; Section 86(5) – Replication of pleading – Discretionary jurisdiction of High court to grant leave to file replication – Leave granted to the election petitioner to file a replication in answer to the new facts asserted in the written statement is challenged – Replication, though not a pleading as per Rule 1 of Order VI, is permissible with the leave of the Court under Order VIII Rule 9 of the CPC, which gives a right to file a reply in defence to set-off or counter-claim set up in the written statement. Section 86(5) of the 1951 Act provides that the High Court may allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial of the petition, but it shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. Further, while considering grant of leave, the Court must bear in mind that, — (a) a replication is not needed to merely traverse facts pleaded in the written statement; (b) a replication is not a substitute for an amendment; and (c) a new cause of action or plea inconsistent with the plea taken in original petition/plaint is not to be permitted in the replication. Held, the non-disclosure of bank accounts, alleged in the election petition, was sought to be explained by the returned candidate in his written statement. The replication only sought explain the averments made in the written statement and does not seek to incorporate any new material facts or a new cause of action to question the election. Hence, leave to file replication was justified and well within the discretionary jurisdiction of the High Court. (Para 16, 17, 18 & 20) Sheikh Noorul Hassan v. Nahakpam Indrajit Singh, 2024 LiveLaw (SC) 362

Code of Civil procedure, 1908 and Representation of peoples Act, 1951; Section 87 – Jurisdiction of High Court in an election petition – An election petition is to be tried, as nearly as may be, in accordance with the procedure applicable under the CPC to the trial of suits subject to the provisions of the 1951 Act and of any rules made thereunder. The High Court, acting as an Election Tribunal, subject to the provisions of the 1951 Act and the rules made thereunder, is vested with all such powers as are vested in a civil court under the CPC. Hence, in exercise of its powers under Order VIII Rule 9 of the CPC, the High Court is empowered to grant leave to an election petitioner to file a replication. (Para 15 & 20) Sheikh Noorul Hassan v. Nahakpam Indrajit Singh, 2024 LiveLaw (SC) 362

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989

To punish a person for casteist insults under SC / ST Act, comments have to be made within public view. Priti Agarwalla v. State of GNCT of Delhi, 2024 LiveLaw (SC) 394

Service Law

Civil Services (House Rent Allowance and City Compensation Allowance) Rules, 1992 (Jammu and Kashmir) – Rule 6(h)(i) and 6(h)(ii) – Entitlement to claim House Rent Allowance (HRA) – Held, the appellant being a Government employee, could not have claimed HRA while sharing rent free accommodation allotted to his father, a retired Government servant. Hence, appeal is dismissed. (Para 9, 10) R.K. Munshi v. Union Territory of Jammu & Kashmir, 2024 LiveLaw (SC) 364

Civil Services (House Rent Allowance and City Compensation Allowance) Rules, 1992 (Jammu and Kashmir) – Rule 6(h)(iv) – Claim of HRA after demitting office – Appellant's Retired Father Could Not Claim HRA Upon Suppernuation from service. Held, Rule 6(h)(iv) has no application in present case. (Para 9) R.K. Munshi v. Union Territory of Jammu & Kashmir, 2024 LiveLaw (SC) 364

Madhya Pradesh State Service Examination Rules, 2015; Rule 4(3)(d)(III) – Amended Rule 4(3)(d)(III) is challenged to be ultravires– The amended Rule 4(3)(d)(III) read as, that meritorious reservation category candidates, who did not avail any benefit of relaxation, are not to be clubbed with meritorious unreserved category candidates at the time of declaring the result of the preliminary examination itself. Such adjustment will only be at the time of final selection, not at the time of preliminary/main examination – Held, amended Rule 4(3)(d)(III) patently harmed the interests of the reservation category candidates, as even meritorious candidates from such categories, who had not availed any reservation benefit/relaxation, continued to occupy the reservation category slots which would have otherwise gone to deserving reservation category candidates lower down in the merit list of that category, had they been included with meritorious unreserved category candidates on the strength of their marks. Further held, the State of Madhya Pradesh itself realized the harm that it was doing to the reservation category candidates and chose to restore Rule 4, as it stood earlier, which enabled drawing up the result of the preliminary examination by segregating deserving meritorious reservation category candidates with meritorious unreserved category candidates at the preliminary examination stage itself. (Para 8, 30 & 32) Deependra Yadav v. State of Madhya Pradesh, 2024 LiveLaw (SC) 342

Madhya Pradesh State Service Examination Rules, 2015 – Normalization of marks – Normalization was undertaken in the context of the marks obtained by candidates in the two main examinations by applying a formula, so as to bring them all on an even keel so as to finalize the list of candidates eligible to be interviewed. This was done by applying a formula uniformly to the marks secured by all the candidates who appeared in the two main examinations, so that their marks would become comparable and enable preparation of a unified marks list. Held, the process of normalization and the consequential merger of the marks secured by the candidates who appeared in the two main examinations cannot be found fault with. (Para 26 & 29) Deependra Yadav v. State of Madhya Pradesh, 2024 LiveLaw (SC) 342

Shops and Establishments

Shops and Establishments Act, 1947 (Tamil Nadu); Section 2(3) & 2(6) – Industrial establishment – For an establishment to be covered under the definition of establishment under the 1947 Act, unless it is one of those specifically mentioned, it must satisfy being a commercial establishment. For any establishment to be commercial, it has to be established that the activities undertaken by it are for making some monetary gain. (Para 19 & 21) Tamil Nadu Medical Services Corporation Ltd. v. Tamil Nadu Medical Services Corporation Employees Welfare Union, 2024 LiveLaw (SC) 402

Special Economic Zones Act, 2005

Section 49(1)(b) and Electricity Act, 2003; Section 14(b) – Deemed to be a distribution licensee – The Ministry of Commerce & Industry (MoCI), vide the 2010 Notification has specified that the 'developer' of the SEZ shall be deemed to be a 'distribution licensee' under the provisions of the Electricity Act. The proviso inserted vide the 2010 Notification, in section 14(b) of the Electricity Act, Provided that the Developer of a SEZ shall be deemed to be a licensee with effect from the date of notification of such SPZ – Held, the proviso to section 14(b) of the Electricity Act is to confer upon an entity like the appellant a status which is otherwise available in accordance with the Electricity Act. With this inclusion it is evident that a SEZ developer is deemed to be a distribution licensee. Once the appellant is a (deemed) distribution licensee, certain benefits and/or privileges do enure in its favour. Accordingly, if CSS is payable by a distribution licensee, the deemed distribution licensee is equally liable to pay the same. (Para 13 & 14, 20) Sundew Properties Ltd. v. Telangana State Electricity Regulatory Commission, 2024 LiveLaw (SC) 393

Specific Relief Act, 1963

Section 12 – Admissibility of deposition of a Power of Attorney Holder – Power of Attorney Holder cannot depose for principal in respect of matters of which only principal can have personal knowledge and in respect of which the principal is liable to be cross-examined – It is necessary for the plaintiff to step into the witness box and depose the said fact and subject himself to cross-examination on that issue. Held, the plaintiff/appellant has failed to enter into the witness box and subject himself to cross-examination, he has not been able to prove the prerequisites of Section 12 of the Specific Relief Act, 1963. (Para 9, 12 & 13) Rajesh Kumar v. Anand Kumar, 2024 LiveLaw (SC) 407

Stay

Can there be a blanket stay on money decree ? Shekhawati Art and Exports v. United India Insurance Company Ltd; 2024 LiveLaw (SC) 408

Tax

Income Tax Act, 1961; Section 17(2)(viii) and Income Tax Rules, 1962; Rule 3(7)(i) – Delegation of powers – Residuary clause – The residuary leaves it to the rule-making authority to tax 'any other fringe benefit or amenity' within the ambit of 'perquisites', not already covered by clauses (i) to (viia) of Section 17(2), by promulgating a rule. Held, the enactment of subordinate legislation for levying tax on interest free/concessional loans as a fringe benefit is within the rulemaking power under Section 17(2) (viii) of the Act. Section 17(2) (viii) itself, and the enactment of Rule 3(7) (i) is not a case of excessive delegation of the 'essential legislative function' and falls within the parameters of permissible delegation. Hence, Rule 3(7) (i) is intra vires Section 17(2) (viii) of the Act. (Para 10 & 31) All India Bank Officers' Confederation v. Central Bank of India, 2024 LiveLaw (SC) 352

Income Tax Act, 1961; Section 17(2) (viii) and Income Tax Rules, 1962; Rule 3(7) (i) – The value of interest-free or concessional loans made available to an employee or a member of his household by the employer or any person on his behalf, is to be treated as 'other fringe benefit or amenity' for the purpose of Section 17(2) (viii) and, therefore, taxable as a 'perquisite'. (Para 19) All India Bank Officers' Confederation v. Central Bank of India, 2024 LiveLaw (SC) 352

Value Added Tax Act, 2004 (Delhi); Section 38(3) & 42 – Timeline for refund – As per Section 38(3)(a)(ii), the refund should have been processed within two months from when the returns were filed. Held, the language of Section 38(3) is mandatory and the department must adhere to the timeline stipulated therein. The appellant-department is not justified in retaining the refund amount beyond the stipulated period and then adjusting the refund amount against the amounts due under default notices that were issued subsequent to the refund period. The impugned judgment directing the refund of amounts along with interest as provided under Section 42 of the Act is affirmed. (Para 8, 9, 10 & 11) Commissioner of Trade and Taxes v. Femc Pratibha Joint Venture, 2024 LiveLaw (SC) 348

Town Planning and Urban Development

Town Planning and Urban Development Act, 1976 (Gujarat); Section 52 – Allotment of land in question – The plaintiffs, being well aware of the fact that Final Plot allotted to them under the second varied Town Planning Scheme was of lesser area, accepted the same without any protest and without agitating a right to a larger area in the light of the initial allotment – Held, having accepted the plot allotted to them upon variation of the scheme without demur or protest, the plaintiffs cannot now seek to reopen the negligence and delay, if any, on the part of the Corporation prior to such variation. (Para 34 & 39) Mrugendra Indravadan Mehta v. Ahmedabad Municipal Corporation, 2024 LiveLaw (SC) 369

Town Planning and Urban Development Act, 1976 (Gujarat); Section 52 – Compensation paid for land is challenged to be inadequate – Held, the conduct of the plaintiffs in depositing the compensation amount thereafter, imply receipt of the compensation amount for the shortfall area in allotted land. This further, foreclosed their right, to either challenge the allotment of a plot of lesser area or to seek more compensation. Further held, the voluntary act of depositing the compensation amount to the trial court precludes them from contending, that the said compensation was never paid to them. (Para 36 & 39) Mrugendra Indravadan Mehta v. Ahmedabad Municipal Corporation, 2024 LiveLaw (SC) 369

Transfer of Property Act, 1882

Section 41 – Doctrine of transfer by Ostensible owner – Bonafide purchaser for valuable Consideration – Held, once it has been held that the transactions executed by the respondents are illegal due to the doctrine of lis pendens the defence of the respondents that they are bonafide purchasers for valuable consideration and thus, entitled to protection under Section 41 is liable to be rejected. The Release Deed is held to be without any legal sanctity. (Para 21, 24) Chander Bhan v. Mukhtiar Singh, 2024 LiveLaw (SC) 347

Transfer of Property Act, 1882; Section 52 – Doctrine of lis pendens – Object – The object underlying the doctrine of lis pendens is for maintaining status quo that cannot be affected by an act of any party in a pending litigation. The objective is also to prevent multiple proceedings by parties in different forums. The principle is based on equity and good conscience. (Para 16) Chander Bhan v. Mukhtiar Singh, 2024 LiveLaw (SC) 347

Transfer of Property Act, 1882; Section 52 – Doctrine of lis pendens – Pendency of a suit shall be deemed to have commenced from the date on which the plaintiff presents the suit and extends till a final decree is passed and is realised. The appellant filed a suit for permanent injunction on 21.07.2003 from which the doctrine of lis pendens would take its effect. The release deed executed is of 28.07.2003, which is subsequent to the filing of the suit. Since the release deed is executed after the suit for temporary injunction was filed by the appellant, the alienation made by release deed would be covered by the doctrine of lis pendens. (Para 18, 19, 20) Chander Bhan v. Mukhtiar Singh, 2024 LiveLaw (SC) 347

Transfer of Property Act, 1882; Section 52 – Doctrine of lis pendens – Applicability States of Punjab, Delhi or Bombay – Held, even if Section 52 of T.P Act is not applicable in its strict sense in the present case, the principles of lis-pendens, which are based on justice, equity and good conscience, would certainly be applicable. (Para 17) Chander Bhan v. Mukhtiar Singh, 2024 LiveLaw (SC) 347

Two-Finger Test

Eradication of the "Two-Finger Test" in rape investigations - The practice of conducting the "two-finger test" in determining the sexual habituation of rape victims despite its prohibition by the Supreme Court - The Court questioned the State on the measures taken to eliminate this regressive and invasive practice. Sunshine Kharpan v. State of Meghalaya, 2024 LiveLaw (SC) 377

Unlawful Activities(Prevention) Act, 1967

Section 43B(1) and Prevention of Money Laundering Act (PMLA), 2002; Section 19(1) – Interpretation of the phrase 'inform him of the grounds for such arrest' – Held, the provision regarding the communication of the grounds of arrest to a person arrested contained in Section 43B(1) of the UAPA is verbatim the same as that in Section 19(1) of the PMLA – It is a statutory mandate requiring the arresting officer to inform the grounds of arrest to the person arrested under Section 43B(1) of the UAPA at the earliest. Both the provisions find their source in the constitutional safeguard provided under Article 22(1) of the Constitution of India and the requirement to communicate the grounds of arrest is the same in both the statutes. Hence, applying the golden rules of interpretation, the provisions which lay down a very important constitutional safeguard to a person arrested on charges of committing an offence either under the PMLA or under the UAPA, have to be uniformly construed and applied. (Para 17, 18, 22 & 34) Prabir Purkayastha v. State, 2024 LiveLaw (SC) 376

Section 43D(5) – Bail order challenged – Rejection of bail on grounds that accusations against the respondents are prima facie true – The Court at the stage of considering the bail applications of the respondents-accused is merely required to record a finding on the basis of broad probabilities regarding the involvement of the respondents in the commission of the alleged offences. Held, there is sufficient material to believe that the accusations against the respondents-accused are prima facie true and that the mandate contained in the proviso to Section 43(D)(5) would be applicable for not releasing the respondents on bail. The Supreme Court should be slow in interfering with the order when the bail has been granted by the High Court, however if such order of granting bail is found to be illegal and perverse, it must be set aside. The High Court has committed gross error in not considering the material/evidence in its right and proper perspective that there are reasonable grounds for believing that the accusations against the respondents are prima facie true. Hence, the impugned order passed by the High Court cannot be sustained. The impugned order passed by the High Court is set aside. (Para 16, 17, 18, 22 & 24) Union of India v. Barakathullah, 2024 LiveLaw (SC) 404

Valuation

Valuation of land by the state – Held, it is not clear on what basis the valuation has been arrived at; at what point of time this amount came to be assessed; and the basis for the assessment of such amount. The High Court proceeded on the footing that the valuation has been assessed and it is now for the appellant to file an application to get the amount disbursed. Further held, the High Court should also have asked the State the basis of the determination of the amount towards compensation and the approach of the High Court while disposing of the appeal is disappointing. The impugned order of High Court is set aside. (Para 13 & 15) Dharnidhar Mishra v. State of Bihar, 2024 LiveLaw (SC) 380

Virtual Hearing

Litigants should be allowed to appear virtually if the court thinks their presence is required. Basudha Chakraborty v. Neeta Chakraborty, 2024 LiveLaw (SC) 401