Supreme Court Weekly Digest With Subject /Statute Wise Index [April 21 to 30]

Supreme Court Weekly Digest April 2024 Part 3

(Apr 21 - 30, 2024)

Bail

Cancellation of Bail – Grounds – Misuse of liberty – Participation in protest and expression of strong views – Non-violation of bail conditions. A. Duraimurugan Pandiyan Sattai @ Duraimurugan v. State, 2024 LiveLaw (SC) 313

Code of Civil Procedure, 1908

Failure to implead necessary parties – Court must apply its mind whether the parties who are likely to be affected by an order have been impleaded to the proceedings. On failure to implead them, court must decline to pass an order of disposing of the petition in terms of the “Minutes of Order”. Only if the Court is satisfied that an order in terms of the “Minutes of the Order” would be legal, the Court can pass an order in terms of the “Minutes of Order”. An order passed without hearing the necessary parties would be illegal. While passing an order in terms of the “Minutes of Order”, the Court must record brief reasons indicating the application of mind. Held, on failure to implead the necessary parties, the High Court will be well within its power to dismiss the Writ Petition and pass an order of restoration of status quo. (Para 17, 19 & 22) Ajay Ishwar Ghute v. Meher K. Patel, 2024 LiveLaw (SC) 335

“Minutes of Order” – Object is to assist the Court – An order passed in terms of the “Minutes of Order” tendered on record by the advocates representing the parties to the proceedings is not a consent order. It is an order in invitum for all purposes. Before tendering the “Minutes of Order” to the Court, the advocates must consider whether an order, if passed by the Court in terms of the “Minutes of Order,” would be lawful. After “Minutes of Order” is tendered before the Court, it is the duty of the Court to decide whether an order passed in terms of the “Minutes of Order” would be lawful. (Para 19) Ajay Ishwar Ghute v. Meher K. Patel, 2024 LiveLaw (SC) 335

Section 114 and Order XLVII Rule 1 – Review Jurisdiction – To declare reserved forest land as private land – Review of earlier order where it had given a clear finding that the title over the reserved forest land wasn't proved by the private person. Held, the High Court showed utmost interest and benevolence in allowing the review by setting aside the well merited judgment in the appeal by replacing its views in all material aspects. The High Court which is expected to act within the statutory limitation went beyond and graciously gifted the forest land to a private person who could not prove his title. The High Court could not interfere by placing reliance upon evidence produced after the decree which states that the land is forest land which has become part of reserved forest. (Para 54 & 56) State of Telangana v. Mohd. Abdul Qasim, 2024 LiveLaw (SC) 314

Section 114 and Order XLVII Rule 1 – Scope of review - Mistake or error apparent on the face of record would debar the court from acting as an appellate court in disguise, by indulging in a re-hearing. Such a mistake or error should be self-evident and an omission so glaring that it requires interference in the form of a review. There is absolutely no room for a fresh hearing or of adjudication for a second time. (Para 20) State of Telangana v. Mohd. Abdul Qasim, 2024 LiveLaw (SC) 314

Code of Criminal Procedure, 1973

Object and purpose of police investigation – Includes the need to ensure transparent and free investigation to ascertain the facts, examine whether or not an offence is committed, identify the offender if an offence is committed, and to lay before the court the evidence which has been collected, the truth and correctness of which is thereupon decided by the court. (Para 26) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Issue of non-bailable warrant – Held, non-bailable warrants cannot be issued in a routine manner and that the liberty of an individual cannot be curtailed unless necessitated by the larger interest of public and the State. Nonbailable warrants should not be issued, unless the accused is charged with a heinous crime, and is likely to evade the process of law or tamper/destroy evidence. (Para 46) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 173(2) – Contents of chargesheet – The need to provide lead details of the offence in the chargesheet is mandatory as it is in accord with paragraph 122 of the police regulations. The investigating officer must make clear and complete entries of all columns in the chargesheet so that the court can clearly understand which crime has been committed by which accused and what the material evidence available. Statements under Section 161 of the Code and related documents have to be enclosed with the list of witnesses. Substantiated reasons and grounds for an offence being made in the chargesheet are a key resource for a Magistrate to evaluate whether there are sufficient grounds for taking cognisance, initiating proceedings, and then issuing notice, framing charges etc. (Para 20, 31 & 31) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 173(2), 190 & 204 – There is an inherent connect between the chargesheet submitted under Section 173(2) of the Code, cognisance which is taken under Section 190 of the Code, issue of process and summoning of the accused under Section 204 of the Code, and thereupon issue of notice under Section 251 of the Code, or the charge in terms of Chapter XVII of the Code. The details set out in the chargesheet have a substantial impact on the efficacy of procedure at the subsequent stages. The chargesheet is integral to the process of taking cognisance, the issue of notice and framing of charge, being the only investigative document and evidence available to the court till that stage. (Para 20) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 173(8) – The requirement of “further evidence” or a “supplementary chargesheet” as referred to under Section 173(8) of the Code, is to make additions to a complete chargesheet, and not to make up or reparate for a chargesheet which does not fulfil requirements of Section 173(2) of the Code. (Para 13) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 204 – Issue of summons – Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issue of summons and this is not a prerequisite for deciding the validity of the summons. Nevertheless, the summons should be issued when it appears to the Magistrate that there is sufficient ground for proceeding against the accused. The Magistrate in terms of Section 204 of the Code is required to exercise his judicial discretion with a degree of caution, even when he is not required to record reasons, on whether there is sufficient ground for proceeding. (Para 17) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 205 – Dispense with personal appearance of accused – Section 205 states that the Magistrate, exercising his discretion, may dispense with the personal attendance of the accused while issuing summons, and allow them to appear through their pleader. Held, there is no provision for granting exemption from personal appearance prior to obtaining bail, is not correct, as the power to grant exemption from personal appearance under the Code should not be read in a restrictive manner as applicable only after the accused has been granted bail. (Para 47) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 190(1)(a) – To treat Protest Petition as complaint – Once additional evidence was being relied upon which had been filed along with the Protest Petition then the only option open was to treat it as a private complaint proceeded to take cognizance under Section 190(1)(a) CrPC after following the due procedure in Chapter XV of the CrPC. Held, CJM took into consideration not only the Protest Petition but also the affidavit filed in support of the Protest Petition for taking cognizance and summoning the accused. Magistrate ought to have treated the Protest Petition as a complaint and followed the provisions and the procedure prescribed under Chapter XV of the CrPC. (Para 5, 7 & 11) Mukhtar Zaidi v. State of Uttar Pradesh, 2024 LiveLaw (SC) 315

Section 378 – Appeal against acquittal – Scope of interference by an appellate Court – Grounds for reversing the judgment of acquittal recorded by the trial Court: (i) That judgment of acquittal suffers from patent perversity; (ii) That the same is based on a misreading/omission to consider material evidence on record; (iii) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. Held, none of these essential mandates governing an appeal against acquittal were adverted to by the High Court. Hence, impugned judgment reversing acquittal into conviction, as recorded by the trial Court is contrary to the principles established by law. (Para 39, 41 & 42) Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 LiveLaw (SC) 316

Section 389 – Suspension of sentence pending an appeal by convicted person – Section 389 deals with the suspension of execution of sentence pending the appeal against conviction and release of appellant(s) on bail. In the case of short-term imprisonment for conviction of an offence, suspension of sentence is the normal rule and its rejection is the exception. The provision mandates for recording of reasons in writing leading to the conclusion that the convicts are entitled to get suspension of sentence and consequential release on bail. (Para 3 & 4) Shivani Tyagi v. State of U.P., 2024 LiveLaw (SC) 333

Section 389 – Suspension of sentence pending an appeal by convicted person – Grounds of suspension of sentence in heinous crimes – Likelihood of delay and sufferance of incarceration for a particular period, cannot be grounds for invoking power under Section 389 Cr.PC. It is because disposal of appeals against conviction within a short span of time may not be possible in a number of pending cases. However, in cases of inordinate delay in consideration of appeal and long incarceration undergone, the power under Section 389 can be invoked. (Para 9 & 11) Shivani Tyagi v. State of U.P., 2024 LiveLaw (SC) 333

Section 389 – Compensation to victim for grant of suspension of sentence – “Blood Money” – The convicts have offered to pay compensation to the victim for grant of suspension of sentence, which when she refused to accept, was directed to be deposited in the court. Held, the compensation was in a way kind of “Blood Money” offered by the convicts to the victim for which there is no acceptability in our criminal justice system. (Para 13) Shivani Tyagi v. State of U.P., 2024 LiveLaw (SC) 333

Section 389 – Suspension of sentence in heinous crimes – Principle of proportionality – Held, if the appropriate punishment is not awarded or if, after conviction for a heinous crime, the court directs the suspension of the sentence without valid reasons, the purpose of criminal justice system fails. (Para 6) Shivani Tyagi v. State of U.P., 2024 LiveLaw (SC) 333

Constitution of India

Article 14 – Right to equality of the underprivileged – Held, forests play a pivotal role in controlling pollution, which significantly affects the underprivileged, violating their right to equality. It is the vulnerable sections of the society who would be most affected by the depletion of forests, considering the fact that the more affluent sections of society have better access to resources as compared to the underprivileged. The concept of sustainable development is to be understood from an eco-centric approach. First and foremost, it is the environment that needs to be sustained, while the anthropogenic development must follow later. (Para 30 & 32) State of Telangana v. Mohd. Abdul Qasim, 2024 LiveLaw (SC) 314

Article 14, 19, 21, 48A & 51A(g) – Fundamental rights and Directive principle of state policy are complimentary to each other – Article 48A and 51A(g) ought to be understood in light of Articles 14, 19 and 21, as they represent the collective conscience of the Constitution. If the continued existence and protection of forests is in the interest of humanity and nature, then there can be no other interpretation than to read the constitutional ethos into these provisions. Part III and Part IV of the Constitution are like two wheels of a chariot, complementing each other in their commitment to a social change and development. There is a constitutional duty enjoined upon every court to protect and preserve the environment. Courts will have to apply the principle of parens patriae in light of the constitutional mandate enshrined in Articles 48A, 51A, 21, 14 and 19 of the constitution. Therefore, the burden of proof lies on a developer or industrialist and also on the State in a given case to prove that there is no degradation. (Para 25, 26 & 38) State of Telangana v. Mohd. Abdul Qasim, 2024 LiveLaw (SC) 314

Article 19(1) (a) – Commercial speech includes advertisements and is protected under Article 19(1) (a) of the Constitution, subject to the reasonable restrictions in Article 19(2). Commercial speech that is deceptive, unfair, misleading, and untruthful is excluded from such constitutional protection and can be regulated and prohibited by the State. Subject to constitutional restrictions, the producer/ advertiser has the freedom to creatively and artistically promote his goods and services. (Para 5) Yash Raj Films Pvt. Ltd. v. Afreen Fatima Zaidi, 2024 LiveLaw (SC) 319

Article 142 – Joint application to declare the marriage void – Held, marriage between the parties is not a 'Hindu marriage' having regard to the provisions of Section 7 of the Act. Hence, the registration certificate is null and void. Dolly Rani v. Manish Kumar Chanchal, 2024 LiveLaw (SC) 334

Article 142 – Quashing of criminal proceedings – There is nothing on record to show that the appellant had any ill intention of cheating or defrauding the complainant. The transaction between the parties was purely civil in nature which does not attract criminal law in any way. Held, all pending criminal appeals is liable to be quashed. (Para 13) Raj Reddy Kallem v. State of Haryana, 2024 LiveLaw (SC) 336

Article 226 – Delay defeats equity – Writ petition dismissed on grounds of Delay or Laches – An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. The High Court may refuse to invoke its extraordinary powers if laxity of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action. The High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is not gainsaid that in all cases of delay the petition is to be dismissed and in certain circumstances depending on the facts of each case, if the court thinks fit can on its discretion condone the delay. For filing a writ petition, there is no fixed period of limitation prescribed but the High Court will have to necessarily take into consideration the delay and laches of the applicant in approaching a writ court. (Para 9, 10 & 11) Mrinmoy Maity v. Chhanda Koley, 2024 LiveLaw (SC) 318

Consumer Protection Act, 1986

Compensation in cases of medical negligence – The idea of compensation is based on restitutio in integrum, which means, make good the loss suffered, so far as money is able to do so, or, take the receiver of such compensation, back to a position, as if the loss/injury suffered by them hadn't occurred. Further, what qualifies as just compensation, as noticed above, has to be considered in the facts of each case. Held, compensation awarded is too less for the suffering caused due to medical negligence and deficient services. Hence, compensation is enhanced. (Para 12.3.2, 12.3.3, 16 & 18) Jyoti Devi v. Suket Hospital, 2024 LiveLaw (SC) 320

Eggshell Skull Rule – A person who has an eggshell skull is one who would be more severely impacted by an act, which an otherwise “normal person” would be able to withstand. It is otherwise termed as “taking the victim as one finds them” and, therefore, a doer of an act would be liable for the otherwise more severe impact that such an act may have on the victim. Held, claimant-appellant not proved to have an eggshell skull, i.e. a pre-existing vulnerability or medical condition, because of which the claimant may have suffered 'unusual damage' is not found. (Para 12.4 & 17) Jyoti Devi v. Suket Hospital, 2024 LiveLaw (SC) 320

Section 2(1)(c) – Consumer complaint alleging 'deficiency of service' and 'unfair trade practice'– On grounds that a song that is shown in the promotional trailer is not played in the film – Held, a promotional trailer is unilateral and is only meant to encourage a viewer to purchase the ticket to the movie, which is an independent transaction and contract from the promotional trailer. A promotional trailer by itself is not an offer and neither intends to nor can create a contractual relationship. Therefore, there is no offer, much less a contract, between the appellant and the complainant to the effect that the song contained in the trailer would be played in the movie and if not played, it will amount to deficiency in the service. (Para 14) Yash Raj Films Pvt. Ltd. v. Afreen Fatima Zaidi, 2024 LiveLaw (SC) 319

Section 2(1)(g) – 'Deficiency' – There is deficiency when there is a fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner of performance that is required to be maintained either in terms of a law or in terms of a contract. Held, there is no contract between the complainant and appellant. Hence, no question of deficiency in service arises. (Para 11) Yash Raj Films Pvt. Ltd. v. Afreen Fatima Zaidi, 2024 LiveLaw (SC) 319

Section 2(1)(r)(1) – 'Unfair trade practice' – The promotional trailer does not make any false statement or does not intend to mislead the viewers. Burden is on the complainant to produce cogent evidence that proves unfair trade practice. No such evidence produced. Hence, no case for unfair trade practice is made out in the present case. (Para 18) Yash Raj Films Pvt. Ltd. v. Afreen Fatima Zaidi, 2024 LiveLaw (SC) 319

Criminal Law

Quashing of FIR – Second FIR on the same set of allegations – Held, respondent had been misusing their official position by lodging complaints one after the other. Further, their conduct of neither appearing before the Trial Court nor withdrawing their first complaint, would show that their only intention was to harass the appellant by first making him face a trial at both the places. Second FIR quashed. (Para 11 & 12) Parteek Bansal v. State of Rajasthan, 2024 LiveLaw (SC) 317

Setting aside of summoning order by the High Court is challenged – For summoning of an accused, prima facie case made out on the basis of allegations in the complaint and the pre-summoning evidence led by the complainant is sufficient – Held, the Session Court and High Court, have erred in not taking into account certain facts which makes a prima facie case against the accused for the offences for which they were summoned. Hence, prima facie case made out for issuing process against the accused to face trial. (Para 12.1 & 15) Aniruddha Khanwalkar v. Sharmila Das, 2024 LiveLaw (SC) 332

E-filing

The Supreme Court asks Allahabad High Court to enable e-filing and virtual appearance facilities at the Uttar Pradesh District Courts. Md. Anas Chaudhary v. Registrar-General High Court of Judicature at Allahabad, 2024 LiveLaw (SC) 323

Election

EVMs can't be tampered with, return to ballot paper will undo electoral reforms. Association of Democratic Reforms v. Election Commission of India, 2024 LiveLaw (SC) 328

VVPAT Case - Supreme Court allows runner-up candidates to seek verification of burnt memory of 5% EVMs per assembly segment. Association of Democratic Reforms v. Election Commission of India, 2024 LiveLaw (SC) 328

Supreme Court rejects plea for 100% EVM-VVPAT verification, issues directions to seal symbol loading unit. Association of Democratic Reforms v. Election Commission of India, 2024 LiveLaw (SC) 328

The Supreme Court declined to entertain a petition seeking voting arrangements for approximately 18,000 who got displaced from Manipur due to the ethnic clash to cast their votes in their home constituency in the Lok Sabha General Elections scheduled to take place on April 19 and 26. It would not be practical to direct the Election Commission of India (ECI) to make accommodations for the Internally Displaced Persons (IDPs) located in nearby areas of Shillong, Kolkata, Guwahati, Hyderabad, Delhi NCR, Bangalore, Kohima three days before the commencement of the General Elections in Manipur. Naulak Khamsuanthang v. Election Commission of India, 2024 LiveLaw (SC) 311

Evidence Law

Standard of proof – In civil cases including matrimonial disputes of a civil nature, the standard of proof is not proof beyond reasonable doubt 'but' the preponderance of probabilities tending to draw an inference that the fact must be more probable. Inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. If there are no positive proved facts - oral, documentary, or circumstantial - from which the inferences can be drawn, the method of inference would fail and what would remain is mere speculation or conjecture. Held, weighing the evidence on preponderance of probabilities, it is the appellant who has established a stronger and more acceptable case. (Para 19, 20 & 35) Maya Gopinathan v. Anoop S.B., 2024 LiveLaw (SC) 327

Evidence Act, 1872

Section 27 – To prove disclosure statement and the discoveries made in furtherance – The statement of an accused recorded by a police officer under Section 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the Investigating Officer (IO) during interrogation and taken down in writing. The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence. Held, mere exhibiting of memorandum prepared by the IO during investigation cannot tantamount to proof of its contents and the IO, while testifying on oath, would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement. By the interrogation memos, it is clear that the IO gave no description of the disclosure statements. Hence, the disclosure statements cannot be read in evidence and the recoveries made in furtherance thereof are non est in the eyes of law. (Para 59, 65 & 66) Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 LiveLaw (SC) 316

Section 60 – Oral evidence must be direct – The section mandates that no secondary/hearsay evidence can be given in case of oral evidence, except for the circumstances enumerated in the section. In case of a person who asserts to have heard a fact, only his evidence must be given in respect of the same. (Para 61) Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 LiveLaw (SC) 316

Foreign Liquor

Foreign Liquor Rules, 1996 (Madhya Pradesh); Rule 19 – Penalty imposed as per the old Rule 19 is challenged to be invalid – Rule 19 amended by way of substitution – Process of substitution consists of two steps: first, the old rule is repealed, and next, a new rule is brought into existence in its place – A repealed provision will cease to operate from the date of repeal and the substituted provision will commence to operate from the date of its substitution subject to specific statutory prescription. Substituted Rule 19 is not been notified to operate from any other date by the Government. Held, the old Rule stood repealed from the statute book and only the substituted Rule applies to all pending and future proceedings. If the amendment by way of a substitution is intended to reduce the quantum of penalty for better administration and regulation there is no justification to ignore the subject and context of amendment and permit the State to recover the penalty as per the unamended Rule. (Para 7, 9, 12, 13, 17 & 32) Pernod Ricard India (P) Ltd. v. State of Madhya Pradesh, 2024 LiveLaw (SC) 321

Forest

Forest Act, 1967 (Andhra Pradesh); Section 15 & 16 – Maintainability of a suit for the relief of declaration of title – Suit filed after finality of proceedings under Section 15 & 16 declaring the land as reserved forest – The State Government would declare the proposed land as a reserved forest by issuing a notification under Section 15, thereafter, the vesting of the land takes place giving the land the status of a reserved forest. Any right not claimed with respect to the land, shall stand extinguished after the publication under Section 15 as declared expressly under Section 16, by way of a reinforcement. The completion of the process as prescribed under Section 15 would result in changing the character of land, including a forest land into a reserved forest. Held, the suit filed is not maintainable as the plaintiff has not challenged the proceedings under Section 15, hence, the proceedings became final and conclusive in view of the express declaration provided under Section 16. (Para 12, 13 & 57) State of Telangana v. Mohd. Abdul Qasim, 2024 LiveLaw (SC) 314

Forest Act, 1967 (Andhra Pradesh) – Object – Enacted with a laudable objective of conserving, protecting and extending the forest cover, with a sound mechanism to deal with all the disputes arising thereunder while declaring land as reserved forest. (Para 6) State of Telangana v. Mohd. Abdul Qasim, 2024 LiveLaw (SC) 314

Frivolous Petition

The Supreme Court imposed a cost of Rs. 5,00,000/ on the Union of India challenging an order passed by the Meghalaya High Court based on the Union's own concession that a previous decision covered the matter. Deprecating the Union's move to challenge the High Court's order, the Supreme Court recorded that this was a “sheer abuse of the process of law” and cautioned the Union against filing frivolous petitions. Union of India v. Sudipta Lahiri, 2024 LiveLaw (SC) 326

Hindu Marriage Act, 1955

Section 7 – Ceremonies for Hindu marriage – Held, Hindu marriage is a sacrament – Section 7 of the Act uses the word “solemnised” which means to perform the marriage with ceremonies and unless the marriage is performed with appropriate ceremonies and in due form, it cannot be said to be “solemnised”. In the absence of any solemnisation of a marriage as per the provisions of the Act, a man and a woman cannot acquire the status of being a husband and a wife to each other. For a valid Hindu marriage, the requisite ceremonies have to be performed and there must be proof of performance of the said ceremony when an issue/controversy arise. Unless the parties have undergone such ceremony, there would be no Hindu marriage according to Section 7 of the Act and a mere issuance of a certificate by an entity in the absence of the requisite ceremonies having been performed, would neither confirm any marital status to the parties nor establish a marriage under Hindu law. Dolly Rani v. Manish Kumar Chanchal, 2024 LiveLaw (SC) 334

Section 8 – Registration of marriage – Held, it is only when the marriage is solemnised in accordance with Section 7, there can be a marriage registered under Section 8. If there has been no marriage in accordance with Section 7, the registration would not confer legitimacy to the marriage. Dolly Rani v. Manish Kumar Chanchal, 2024 LiveLaw (SC) 334

Insolvency and Bankruptcy Code, 2016

Insolvency and Bankruptcy Code, 2016; Section 5(7) & 5(8) – Financial debt and financial creditor – Test to determine – The transaction must have the commercial effect of borrowing – Held, the amount raised under the said two agreements has the commercial effect of borrowing. Therefore, the amounts covered by security deposits under the agreements constitute financial debt. Further held, as it is a financial debt owed by the first respondent, Section 5(7) of the IBC makes the first respondent a financial creditor. (Para 16, 17 & 18) Global Credit Capital Ltd. v. Sach Marketing Pvt. Ltd; 2024 LiveLaw (SC) 331

Insolvency and Bankruptcy Code, 2016; Section 5(21) – Operational debt – Where one party owes a debt to another and when the creditor is claiming under a written agreement/arrangement providing for rendering 'service', the debt is an operational debt only if the claim subject matter of the debt has some connection or co-relation with the 'service' subject matter of the transaction. It is necessary to determine the real nature of the transaction on a plain reading of the agreements. Held, the payment of the amount mentioned has no relation with the service supposed to be rendered by the first respondent. Therefore, by no stretch of imagination, the debt claimed by the first respondent can be an operational debt. (Para 14 & 15) Global Credit Capital Ltd. v. Sach Marketing Pvt. Ltd; 2024 LiveLaw (SC) 331

Practice and Procedure

If the High Court found it necessary to direct the presence of the government officer then it should have been first through video conferencing. State of West Bengal v. Ganesh Roy, 2024 LiveLaw (SC) 324

National Investigation Agency Act, 2008

National Investigation Agency Act, 2008; Section 22(1) & 22(3) – Power of Chief Judge cum City Sessions Court for trial of offences set out in the Schedule to the NIA Act – The State Government has been given exclusive power under Section 22(1) to constitute one or more Special Courts for trial of offences under any or all the enactments specified in the Schedule to NIA Act. The jurisdiction conferred by this Act on a Special Court shall, until a Special Court is designated by the State Government, be exercised by the Court of Session of the division in which such offence has been committed. Held, the State has not constituted a special court under Section 22, hence, the Chief Judge cum City Sessions Court had the power and jurisdiction to deal with the case by virtue of Section 22 (3). Hence, the order of Chief Judge cum City Sessions Court permitting the addition of the offences under UAPA to the case does not suffer from any illegality or infirmity. (Para 23, 24, 28, 29 & 30) State of West Bengal v. Jayeeta Das, 2024 LiveLaw (SC) 312

Negotiable Instruments Act, 1881

Section 138 - Amendment of Complaint - Cheque Date - Typographical Error - The appellant challenged the High Court's decision permitting the respondent to amend the complaint to correct the date on a cheque from 22.07.2010 to 22.07.2012. The application for amendment was filed after evidence had been tendered, and the learned Magistrate rejected the amendment on the grounds that the date had been consistently recorded as 22.07.2010 in both the complaint and the evidence. The legal notice issued before the complaint also mentioned the date 22.07.2010. The High Court allowed the amendment, but the Supreme Court found that the amendment was not justified since the original date was crucial for compliance with the statutory time frame and the financial status of the account. The High Court's order permitting the amendment was set aside, and the appeal was allowed. Munish Kumar Gupta v. Mittal Trading Company, 2024 LiveLaw (SC) 339

Section 138 – Requirement of 'consent' in compounding of offence under section 138 – Even though compensation is duly paid by the accused, yet if the complainant does not agree for the compounding of the offence, the courts cannot compel the complainant to give 'consent' for compounding of the matter. Held, as the complainant has compensated the complainant and has already been in jail for more than 1 year, even though the complainant is unwilling to compound the case, the proceedings must come to an end. (Para 12 & 14) Raj Reddy Kallem v. State of Haryana, 2024 LiveLaw (SC) 336

Section 147 & 138 – Compoundable offence – All offences punishable under the Negotiable Instruments Act are compoundable – In cases of section 138 the accused must try for compounding at the initial stages instead of the later stage, however, there is no bar to seek the compounding of the offence at later stages of criminal proceedings including after conviction. (Para 12) Raj Reddy Kallem v. State of Haryana, 2024 LiveLaw (SC) 336

Penal Code, 1860

Section 406 – Criminal breach of trust – Section 406 requires entrustment, which carries the implication that a person handing over any property or on whose behalf the property is handed over, continues to be the owner of the said property. Further, the person handing over the property must have confidence in the person taking the property to create a fiduciary relationship between them. A normal transaction of sale or exchange of money/consideration does not amount to entrustment. (Para 36) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 406 – Dishonest misappropriation of 'Stridhan' – Entrustment of stridhan property with dominion over such property to the husband or to any member of his family as well as dishonest misappropriation of or conversion to his own use the said property by the husband or such other member of his family is an offence under Section 406 – Held, admittedly there is no criminal offence claimed and, therefore, proof on balance of probabilities would be sufficient. (Para 21) Maya Gopinathan v. Anoop S.B.,, 2024 LiveLaw (SC) 327

Section 415 – Cheating – The offence of cheating requires dishonest inducement, delivering of a property as a result of the inducement, and damage or harm to the person so induced. The offence of cheating is established when the dishonest intention exists at the time when the contract or agreement is entered, for the essential ingredient of the offence of cheating consists of fraudulent or dishonest inducement of a person by deceiving him to deliver any property, to do or omit to do anything which he would not do or omit if he had not been deceived. (Para 37) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Section 506 – Criminal intimidation – An offence of criminal intimidation arises when the accused intendeds to cause alarm to the victim, though it does not matter whether the victim is alarmed or not. The word 'intimidate' means to make timid or fearful, especially: to compel or deter by or as if by threats. The threat communicated or uttered by the person named in the chargesheet as an accused, should be uttered and communicated by the said person to threaten the victim for the purpose of influencing her mind. The word 'threat' refers to the intent to inflict punishment, loss or pain on the other. Mere expression of any words without any intent to cause alarm would not be sufficient to bring home an offence under Section 506 of the IPC. (Para 38) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337

Rights of Persons with Disabilities Act 2016

The RPWD Act came into force on 19 April 2017. Though over seven years have elapsed since the enactment of the law, the implementation across the country is still in a dismal state. Many States had not framed the rules under the RPWD Act, which under Section 101(1), they were required to frame within six months from the date of commencement. Seema Girija v. Union of India, 2024 LiveLaw (SC) 322

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

Section 17 and Security Interest (Enforcement) Rules, 20024; Rule 8(6) & 8(7) – Auction sale set aside on grounds of non-compliance of the statutory provisions in conducting the sale – Mandatory notice of 30 days was not given to the Borrower before holding the auction/sale proceedings. Hence, auction sale is set aside. Bank is directed to refund the auction sale money to the appellants. (Para 4 & 12) Govind Kumar Sharma v. Bank of Baroda, 2024 LiveLaw (SC) 325

Right of bank to claim possession of property – Held, once the auction sale is set aside, the status of the appellants as owners would automatically revert to that of tenants (as it was before the auction sale) and the Bank would have no right to claim actual physical possession from the appellants nor would the appellants be under any obligation to handover physical possession to the Bank. (Para 12) Govind Kumar Sharma v. Bank of Baroda, 2024 LiveLaw (SC) 325

Service Law

Employees of Private Schools (Condition of Service) Act, 1977 (Maharashtra); Section 7 and Employees of Private Schools (Condition of Service) Rules, 1981 (Maharashtra); Rule 40 – Termination of service challenged – On grounds of non-compliance of MEPS Act and Rules while accepting the resignation – Section 7 of the MEPS Act and Rule 40 of the Rules does not impose any guidelines for acceptance of the resignation upon the management. Held, mere non communication of acceptance of resignation to the employee would not render the termination invalid. (Para 18 & 23) Shriram Manohar Bande v. Uktranti Mandal, 2024 LiveLaw (SC) 329

Employees of Private Schools (Condition of Service) Act, 1977 (Maharashtra); Section 7 and Employees of Private Schools (Condition of Service) Rules, 1981 (Maharashtra); Rule 40 – Termination of service challenged – On grounds of non-compliance of MEPS Act and Rules while accepting the resignation – Power of school committee to accept resignation – Held, the appellant himself had addressed his resignation letter to the school committee, which placed it before the management, upon which the management committee passed a resolution accepting the resignation. Further held, the School Committee consists of four representatives of the management, making it evident that management was involved in the process of considering and accepting the resignation letter. Hence, the appellant failed to prove any error in the findings of the High Court that the acceptance of resignation was in compliance with the requirements of MEPS Act and Rules. (Para 15) Shriram Manohar Bande v. Uktranti Mandal, 2024 LiveLaw (SC) 329

Regularization of employment – Change in nature of employment through continuous service – Held, the essence of employment and the rights thereof cannot be merely determined by the initial terms of appointment when the actual course of employment has evolved significantly over time. Continuous service in capacities of regular employees, performing duties indistinguishable from those in permanent posts, and selection through a process that mirrors that of regular recruitment, constitutes a substantive departure from the temporary nature of the initial engagement. Reliance on procedural formalities cannot be used to perpetually deny substantive rights that have accrued over a considerable period through continuous service. Further, promotion was based on a specific notification for vacancies, followed by a selection process involving written tests and interviews. Hence, the service conditions, as evolved over time, warrant a reclassification from temporary to regular status. The appellants are entitled to be considered for regularization in their respective posts. (Para 5 & 6) Vinod Kumar v. Union of India, 2024 LiveLaw (SC) 330

Sick Industrial Companies (Special Provisions) Act, 1985

Section 22(1) - If the recovery proceedings against the Sick Company do not pose a threat to its properties or have adversely impacted the scheme of the revival of the Sick Company, then there wouldn't be a bar for filing a suit for the recovery of the dues against the Sick Company. Fertilizer Corporation of India Ltd. v. Coromandal Sacks Pvt. Ltd., 2024 LiveLaw (SC) 338

Stridhan

Married women's right to 'Stridhan' – Absolute right over 'Stridhan' – The properties gifted to a woman before marriage, at the time of marriage or at the time of bidding of farewell or thereafter are her stridhan properties. It is her absolute property with all rights to dispose at her own pleasure. The husband has no control over it and may only use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. (Para 21) Maya Gopinathan v. Anoop S.B.,, 2024 LiveLaw (SC) 327

Unlawful Activities (Prevention) Act, 1967

Unlawful Activities (Prevention) Act, 1967; Section 2(1) (d) & 43D (2) and Criminal Procedure Code, 1973; Section 167(2) – Power to extend remand beyond 90 days – Under section 43D power is given to 'the court' to extend and authorise detention of the accused beyond a period of 90 days. As per section 2(1) (d), 'The court' would mean jurisdiction of a normal criminal Court and also includes a Special Court constituted under Section 11 or Section 22 of the NIA Act. Hence, the Chief Judge cum City Sessions Court had the jurisdiction to pass the order of extension of detention beyond 90 days. Held, the jurisdictional Magistrate would be clothed with the jurisdiction to deal with the remand of the accused albeit for a period of 90 days only under Section 167(2) of CrPC, because for authorising remand beyond 90 days, an express order of the Sessions Court or the Special Court, as the case may be, would be required by virtue of Section 43D (2) of UAPA. Hence, order of extension of remand by Chief Metropolitan Magistrate beyond the period of 90 days, was illegal. (Para 33, 35, 36, 37) State of West Bengal v. Jayeeta Das, 2024 LiveLaw (SC) 312