Supreme Court Weekly Digest With Subject /Statute Wise Index [July 1 to 9]

Citations 2024 LiveLaw (SC) 435 to 2024 LiveLaw (SC) 450

Advocate

Every advocate is expected to come to the Court in proper attire as per the Rules and behave in the Court. (Para 7) Bijon Kumar Mahajan v. State of Assam, 2024 LiveLaw (SC) 449

All India Tourist Vehicles (Permit) Rules, 2023

Object – The 2023 Rules have primarily two objects: Firstly, to make the movement of such tourist vehicles across the country through different States seamless and smooth; and secondly, the revenue to be generated by the Centre to be proportionately shared with the State Governments, also taking into account their previous revenue generation, and also, keeping in mind that their earlier revenue income was not reduced in any manner. The Rules, 2023 superseded the All-India Tourists Vehicles (Authorization/Permit) Rules, 2021. After the coming into of the Rules, 2023, the power of levying/collecting Border Tax/Authorization Fee by the State Governments at various border check posts from vehicles carrying All India Tourists Permit was to be done away with. (Para 4) Muthyala Sunil Kumar v. Union of India, 2024 LiveLaw (SC) 450

Arbitration and Conciliation Act, 1996

Section 19(1) – Applicability of Civil procedure Code, 1908 in arbitral proceedings – The legislature's intention is reflected in Section 19(1) of the Arbitration Act, which provides that an Arbitral Tribunal is not bound by the provision of the CPC. Hence, the provisions of the CPC have not been made applicable to the proceedings under Sections 34 and 37(1)(c). (Para 18) Bombay Slum Redevelopment Corporation v. Samir Narain Bhojwani, 2024 LiveLaw (SC) 445

Section 34(3) and Limitation Act of 1963; Section 2(j) & 4 – Bar of limitation – Three months from the date of receiving the arbitral award – Held, the prescribed period of limitation started from 1st July, 2022 and ended on 30th September. The three months provided by way of limitation expired a day before the commencement of the pooja vacation, which commenced on 1st October 2022. Therefore, the appellants were not entitled to take benefit of Section 4 of the Limitation Act which states that if the 'prescribed period' of limitation expires on the day court is closed, the limitation period can be extended to the day the court re-opens. Further, as per Section 34(3), the period of limitation was extended by a maximum period of 30 days which expired on 30th October, 2022 on which date the court was closed. The benefit of section 4 of Limitation Act is only applicable on the 'prescribed period' and not applicable on the extended 30 days. Section 2(j) of the Limitation Act makes it amply clear that the 'prescribed period' for making an application for setting aside an arbitral award is three months. Hence, even when the period of extended limitation expired on 30th October when the court was closed, the benefit of Section 4 for the extension of limitation to the day the court re-opens is not applicable. Held, as the petition was filed on 31st October 2022, the High Court was right in holding that the petition filed was beyond the period specified under Section 34(3). Hence, there is no merit in the appeal, and it is, accordingly, dismissed. (Para 10 & 11) State of West Bengal v. Rajpath Contractors and Engineers Ltd., 2024 LiveLaw (SC) 454

Section 34 & 37 – Jurisdiction of the Appellate Court dealing with an appeal under Section 37 – Jurisdiction during appeal under Section 37 against the judgment in a petition under Section 34 is more constrained than the jurisdiction of the Court dealing with a petition under Section 34. It is the duty of the Appellate Court to consider whether Section 34 Court has remained confined to the grounds of challenge that are available in a petition under Section 34. The ultimate function of the Appellate Court under Section 37 is to decide whether the jurisdiction under Section 34 has been exercised rightly or wrongly. While doing so, the Appellate Court can exercise the same power and jurisdiction that Section 34 Court possesses with the same constraints. (Para 16) Bombay Slum Redevelopment Corporation v. Samir Narain Bhojwani, 2024 LiveLaw (SC) 445

Section 34 & 37 – Object of arbitral proceedings – The court directed the members of the Bar to show restraint by incorporating only legally permissible grounds in petitions under Section 34 and the appeals under Section 37. Held, arbitration must become a tool for expeditious, effective, and cost-effective dispute resolution. When members of the bar take up so many grounds in petitions under Section 34, which are not covered by Section 34, there is a tendency to urge all those grounds which are not available in law and waste the Court's time. The proceedings under Sections 34 and 37 are being treated as if the same are appeals under Section 96 of the CPC, making the arbitral procedure inefficient and unfair. Further held, everyone associated with the arbitral proceedings must remember that brevity will make the arbitral proceedings and the proceedings under Sections 34 and 37 more effective. (Para 23) Bombay Slum Redevelopment Corporation v. Samir Narain Bhojwani, 2024 LiveLaw (SC) 445

Section 34 & 37 – Power of the Appellate Court dealing with the appeal under Section 37(1)(c) of the Arbitration Act to pass an order of remand to Section 34 Court. Order of remand passed directing the learned Single Judge to hear the petition under Section 34 afresh is challenged – The remedy of an appeal will not be effective unless there is a power of remand vesting in the appellate authority. In the Arbitration Act, there is no statutory embargo on the power of the Appellate Court under Section 37(1)(c) to pass an order of remand. However, looking at the scheme of the Arbitration Act, the Appellate Court can exercise the power of remand only when exceptional circumstances make an order of remand unavoidable. Held, while deciding the petition under Section 34 of the Arbitration Act, the learned Single Judge has made a very elaborate consideration of the submissions made across the Bar. Hence, the finding of the Appellate Bench that the impugned judgment of the learned Single Judge does not address several issues raised by the parties cannot be sustained at all. Further held, the remand was completely unwarranted, as the learned Single Judge has elaborately dealt with the merits of the challenge in the Section 34 petition. (Para 7, 17, 18 & 20) Bombay Slum Redevelopment Corporation v. Samir Narain Bhojwani, 2024 LiveLaw (SC) 445

Bail

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 20(b)(ii)(c) - The High Court took notice of the fact that the petitioner had been in custody since 11th May 2022, and only one witness had been examined so far. In such circumstances, the High Court deemed it fit to order the release of the petitioner on bail, but only for a period of two months. Held, it is an incorrect order. If the High Court was of the view that the petitioner's right to a speedy trial had been infringed, then the High Court should have ordered the release of the petitioner on bail pending the final disposal of the trial itself. There was no good reason for the High Court to limit the period of bail. (2 - 5) Kishor Karmakar v. State of Odisha, 2024 LiveLaw (SC) 436

Penal Code, 1860; Section 366 (A) r/w. 34 - The High Court ordered the release of the petitioner on bail, but subject to the condition that the surety shall be the victim. It is the case of the petitioner that it was practically impossible to ask the victim to stand as a surety. In such circumstances, the petitioner preferred an application seeking modification of the condition. The modification application was rejected by the High Court. In such circumstances, the petitioner is before the Supreme Court. Held, it is very unfortunate to note that because of such an absurd condition imposed by the High Court, the petitioner, although ordered to be released on bail way back in July 2023, is still languishing in jail. The condition imposed by the High Court requiring the victim to stand as a surety is stayed from its operation. The petitioner is ordered to be released on bail subject to the terms and conditions that the trial court may deem fit to impose. (Para 2 - 9) Sharwan Kumar Yadav @ Sharwan Yadav v. State of Bihar, 2024 LiveLaw (SC) 435

Constitution of India

Article 21 and Criminal procedure Code, 1973 – Right to a speedy trial – Application for bail on grounds of delay in trial of 4 years – Held, bail is not to be withheld as a punishment – If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. Further held, the court is inclined to exercise the discretion in favour of the appellant for reasons: (i) The appellant is in jail as an under-trial prisoner past four years; (ii) Till this date, the trial court has not been able to even proceed to frame charge; and (iii) As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses. As it cannot be assumed by what time the trial will ultimately conclude, howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India. The appellant is ordered to be released on bail subject to the terms and conditions. (Para 7, 8, 9, 19 & 23) Javed Gulam Nabi Shaikh v. State of Maharashtra, 2024 LiveLaw (SC) 437

Article 32 – Writ petition – Double taxation challenged – Legality of different State Governments levying and collecting Authorization Fee/Border Tax in violation of All India Tourist Vehicles (Permit) Rules, 2023 in question – Held, the State enactments, rules and regulations being not under challenge, it cannot be said that the demand of Border Tax/Authorization Fee at the borders by the respective State Governments is bad under law. The petitioners, in order to succeed, have to first consider challenging the State provision contained in the Act. (Para 10) Muthyala Sunil Kumar v. Union of India, 2024 LiveLaw (SC) 450

Article 32 & 226 – Maintainability of Writ Petition in Supreme Court – Held, the petitioners ought to have first approached their jurisdictional High Courts to challenge their respective State enactments. Court is not inclined to enter into the merits of the matter at the present stage. (Para 9 & 10) Muthyala Sunil Kumar v. Union of India, 2024 LiveLaw (SC) 450

Code of Civil Procedure, 1908

Section 11 – Bar of res judicata – Object of the principle of res judicata is to avoid parties to litigate on the same issue which has already been adjudicated upon and settled. The matter which is directly and substantially in issue in the previous litigation ought not to be permitted to be raised and adjudicated upon in the subsequent suit. Title and possession over the disputed land is claimed – Held, the judgment and order of the previous suit which is final and conclusive, in no specific terms adjudicates upon the right, title and interest of the suit land. The suit, was dismissed simpliciter without adjudication of any rights of the plaintiff-appellant over the suit land vis-à-vis the Cantonment Board. Hence, the principle of res judicata would not be attracted as the issue in the present suit was neither directly or indirectly in issue in the previous suit. The suit is not barred by res judicata. (Para 21, 23, 25) Har Narayan Tewari v. Cantonment Board, Ramgarh Cantonment, 2024 LiveLaw (SC) 446

Section 11 – Applicability of res judicata between co-defendants – It is a settled law that the principle of res judicata is applicable not only between the plaintiff and the defendants but also between the co-defendants. In applying the principle of res judicata between the co-defendants, primarily three conditions are necessary to be fulfilled, namely, (i) there must be a conflict of interest between the co-defendants; (ii) there is necessity to decide the said conflict in order to give relief to plaintiff; and (iii) there is final decision adjudicating the said conflict. Once all these conditions are satisfied, the principle of res judicata can be applied inter se the co-defendants. Held, there was no conflict of interest between the co-defendants in the earlier Suit. None of the above stated conditions between co-defendants stood fulfilled for applying res judicata. Hence, the principle of res judicata would not be attracted as the there was no conflict of interest between the co-defendants in the said previous suit which if any never came to be adjudicated upon. The suit is not barred under Section 11 CPC. (Para 23 & 25) Har Narayan Tewari v. Cantonment Board, Ramgarh Cantonment, 2024 LiveLaw (SC) 446

Section 100 – Second appeal – Whether substantial question of law is involved? – Held, the substantial question of law arising in the second appeal was - Whether the suit as setup by the plaintiff-appellant was barred by principle of res judicata in view of the decision in the earlier Suit. (Para 17) Har Narayan Tewari v. Cantonment Board, Ramgarh Cantonment, 2024 LiveLaw (SC) 446

Code of Criminal Procedure, 1973

Section 313 – Conviction of accused challenged on grounds of violation of Section 313 – Section 313 embodies principle of natural justice viz., audi alteram partem, empowering the Court to examine the accused thereunder to give the accused concerned an opportunity to explain the incriminating circumstances appearing against him in the prosecution evidence. Questioning under Section 313(1)(a), Cr.PC, is discretionary but the questioning under Section 313(1)(b) thereof is mandatory. Held, if a fatal non-compliance in the matter of questioning resulted in 'material prejudice' to any convict in a criminal case, the trial concerning that convict should stand vitiated. The examination of the appellant under Section 313, Cr.PC, reveals that both the incriminating circumstances were not directly or even indirectly put to the appellant while being examined under Section 313, Cr.PC. Held, the twin incriminating circumstances were not put to the appellant while he was being questioned under Section 313, Cr.PC, and they ultimately culminated in his conviction, it is clear that the appellant was 'materially prejudiced' and it had resulted in blatant miscarriage of justice. The failure as above is not a curable defect and it is nothing but a patent illegality vitiating the trial qua the appellant. Hence, the conviction of the appellant could not be sustained. (Para 19, 20, 24 & 26) Naresh Kumar v. State of Delhi, 2024 LiveLaw (SC) 443

Section 389 – Suspension of substantive order of sentence of life imprisonment – Held, if a sentence imposed by trial court is for a fixed term, ordinarily, the appellate court may exercise its discretion to suspend the operation of the same liberally unless there are any exceptional circumstances emerging from the record to decline. However, when it is a case of life imprisonment, the only legal test which the Court should apply is to ascertain whether there is anything 'palpable' or 'apparent on the face of the record' on the basis of which the court can come to the conclusion that the conviction is 'not sustainable in law' and that the convict has very fair chances of succeeding in his appeal. Further held, the offence is prima facie established against the appellant before the trial court. Hence, the High Court is at no fault in declining to suspend the substantive order of sentence of life imprisonment. (Para 7 & 8) Bhupatji Sartajji Jabraji Thakor v. State of Gujarat, 2024 LiveLaw (SC) 438

Consumer Protection Act, 1986

Section 2(1)(d) – Purchase for “commercial purpose” – Ordinarily “commercial purpose” is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities. Further, the purchase of the goods should have a close and direct nexus with a profit generating activity. If it is found that the dominant purpose behind purchasing the goods was for the personal use and consumption of the purchaser and/or their beneficiary, or was otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of “generating livelihood by means of self-employment” need not be looked into. Held, the appellants had failed to prove that the dominant purpose or dominant use of the car in question was for commercial purpose or that the purchase of the car had any nexus or was linked with any profit generating activity of the respondent company. (Para 16 & 29) Daimler Chrysler India Pvt. Ltd. v. Controls & Switchgear Company Ltd., 2024 LiveLaw (SC) 447

Section 2(1)(r) – “Unfair trade practice” – A trade practice which for the purpose of promoting the sale of any goods by adopting deceptive practice like falsely representing that the goods are of a particular standard, quality, style or model, would amount to “unfair trade practice”. Held, incomplete disclosure or non-disclosure of the complete details with regard to the functioning of the airbags at the time of promotion of the car, has rightly been considered by the National Commission as the “unfair trade practice” on the part of the appellants, and awarded compensation towards it. The National Commission also rightly awarded compensation towards the deficiency in service on account of the frontal airbags of the car having not deployed at the time of accident. Further held, since the National Commission has considered in detail the evidence and the material on record adduced by the both the parties, the judgment passed does not warrant any interference. (Para 37, 38 & 39) Daimler Chrysler India Pvt. Ltd. v. Controls & Switchgear Company Ltd., 2024 LiveLaw (SC) 447

Criminal Jurisprudence

Howsoever stringent the penal law may be, the over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly. (Para 20) Javed Gulam Nabi Shaikh v. State of Maharashtra, 2024 LiveLaw (SC) 437

The presumption of innocence comes to an end when an accused is put to trial and is held guilty of the offence with which he is charged. (Para 6) Bhupatji Sartajji Jabraji Thakor v. State of Gujarat, 2024 LiveLaw (SC) 438

Evidence Act, 1872

Credibility of a witness – Statement of witness has substantial variations with his testimony in court, giving rise to doubts as to the veracity of his testimony. Held, the threshold for disbelieving a witness must not be mere discrepancy or inconsistency but material discrepancy and inconsistency, which renders the account narrated by the witnesses so highly improbable that the same may safely be discarded altogether from consideration. Further held, it cannot be expected that all the witnesses, when under attack by the accused persons, possess stellar memories with an accurate recollection of the events. Although, there are a few inconsistencies in the testimonies of the witnesses, they are minor and not substantial, so as to erode the credibility of such witnesses. Hence, the credibility and reliability of the witnesses is unshaken. (Para 13, 15 & 16) Muthyala Sunil Kumar v. Union of India, 2024 LiveLaw (SC) 450

Hostile Witness – A witness cannot be disbelieved on the sole ground of him turning hostile, the hostility of such witness does not particularly dent the prosecution's case. Held, merely because a witness resiled from his statement given to the police, the entire case presented by the prosecution cannot be unreliable. (Para 18) Muthyala Sunil Kumar v. Union of India, 2024 LiveLaw (SC) 450

Onus of proof – Held, the onus to establish the prejudice or miscarriage on account of non-questioning or inadequate questioning on any incriminating circumstance(s), during the examination under Section 313, Cr.PC, is on the convict concerned. (Para 21) Naresh Kumar v. State of Delhi, 2024 LiveLaw (SC) 443

Section 134 – Sole witness – Conviction on grounds of sole witness testimony is challenged – Held, no particular number of witnesses is required, in any case, to prove a fact. It is the quality of evidence and not the quantity that matters. If the evidence of a solitary witness appeals to the court to be wholly reliable, the same can form the foundation for recording a conviction. Hence, the conviction of the appellant does not call for interference based on the sole testimony which is found to be reliable. (Para 17) Muthyala Sunil Kumar v. Union of India, 2024 LiveLaw (SC) 450

Limitation Act, 1963

Section 12(1) – Exclusion of the day from which the limitation period is to be reckoned – The period of limitation under Section 34 will have to be reckoned from 30th June 2022, when the appellants received the award. Held, in view of Section 12(1), 30th June, 2022 will have to be excluded while computing the limitation period. Hence, the period of limitation starts from 1st July, 2022. (Para 7) State of West Bengal v. Rajpath Contractors and Engineers Ltd., 2024 LiveLaw (SC) 454

Penal Code, 1860

Section 300 – Conviction for the offence of murder is challenged – Whether the nature of offensive act comes within the purview of section 300? – Held, the appellant caused such bodily injury, which in the ordinary course of nature was sufficient to cause death. , the appellant participated in a premeditated attack on the victim, armed with a deadly weapon and stabbed the unarmed victim on a vital organ causing his death. The conduct of the appellant is covered by both clauses (1) and (3) of section 300, IPC. The intention to cause death can easily be discerned from the conduct of the appellant and the nature of fatal injury inflicted, which in the ordinary course of nature was sufficient to cause death. Fulfilment of any one condition of section 300, IPC is enough to convict the appellant under section 302 thereof, and in the present case not one but two conditions have clearly been shown to exist to nail the appellant for murder. Further held, prosecution has been able to establish beyond reasonable doubt that the appellant was the person who stabbed the victim during the course of the attack by the accused persons leading to his death. Hence, conviction of appellant is affirmed. (Para 20, 24, 26 & 27) Muthyala Sunil Kumar v. Union of India, 2024 LiveLaw (SC) 450

Persons With Disabilities (Equal Opportunities, Protection Of Rights And Full Participation) Act, 1995

Section 33 of the PWD Act, 1995 – Exemption of posts from application of reservation - IRS (C&E) and IRS (IT) posts were excluded from the reservation for the VI category – Held, a notification excluding these two categories for VI category candidates has not been issued in terms of the proviso to Section 33 of the PWD Act, 1995. Therefore, in absence of such a notification, the reservation will have to be provided to the VI category candidates in these two categories as well. (Para 10) Union of India v. Pankaj Kumar Srivastava, 2024 LiveLaw (SC) 444

Section 36 – Vacancies not filled up to be carried forward –Respondent no.1 has been made to run from pillar to post to get an appointment, though there is a large backlog of vacancies in various PWD categories. The appellant has taken a stand which defeats the very object of enacting laws for the benefit of persons with disability. Held, by applying the principles governing Section 36 of the PWD Act, 1995, the cases of respondent no.1 and the other 10 candidates who are above him in merit could have been considered, especially when there is a gross default on the part of the appellant (Union of India) in promptly implementing the provisions of the PWD Act, 1995. Hence, it is a fit case to exercise jurisdiction under Article 142 of the Constitution of India. Respondent shall be considered for appointment against the backlog vacancies of PWD candidates either in IRS (IT) or in other service/branch. (Para 9, 14 & 15) Union of India v. Pankaj Kumar Srivastava, 2024 LiveLaw (SC) 444

Service Law

Rajasthan Panchayati Raj Prabodhak Service Rules, 2008; Rule 13(v) which provides for age relaxation to the persons serving under educational projects is challenged to be discriminatory and contrary to Article 14 of the Constitution of India – Fixing of minimum and maximum age requirement is a policy decision – There was a valid classification based on intelligible differentia which distinguished applicants with project experience and those who lacked project experience. Further the differentia had a rational relation to the object sought to be achieved by the Rules. Held, the historical background leading to the enactment of the Rules itself provides a justification for granting relaxation to the persons serving under the educational project, if they fulfil the condition that they were within the age limit when they were initially engaged. Hence, relaxation provided for in Rule 13(v) is not arbitrary or unreasonable. (Para 22, 24 & 25) Mahesh Chand Bareth v. State of Rajasthan, 2024 LiveLaw (SC) 442

Guidelines sanctioning award of excess bonus marks on a differential basis is challenged to be discriminatory and ultra vires the Rules – Bonus marks fixed for applicants with project experience and other applicants are different – Guidelines for the selection were issued before the advertisement for the post – Held, the experience gathered from project work stood on a higher pedestal because it was in tune with the nature of the work of the position of appointment – Hence, there is no illegality in the prescription of additional marks for those applicants who had experience of working in projects, while recruiting Prabhodhaks. (Para 29 & 40) Mahesh Chand Bareth v. State of Rajasthan, 2024 LiveLaw (SC) 442