Supreme Court Monthly Digest April 2024

Citations 2024 LiveLaw (SC) 269 to 2024 LiveLaw (SC) 339

Abuse of Process of Law

Abuse of process of law – Collusion between parties in tender process – Held, respondent no. 1 in collusion with respondent no. 2, had misused the process of law for covering up the irregularities and illegalities committed in the tender process. The division bench of High Court failed to notice the ill-intention of the respondent nos. 1 and 2 and via the impugned order, permitted respondent no. 2 to execute the project even though the tender was already withdrawn by the respondent no.1 (HIMUDA) in view of the report made by the independent Committee (constituted by the High Court) confirming gross irregularities and illegalities committed by the officers of respondent no. 1. Held, the impugned order having been passed without proper application of mind and without assigning any cogent reason for brushing aside the findings of Independent Committee and observations of Single Bench, deserves to be quashed and set aside. Respondent no.1 shall be at liberty to initiate a fresh tender process in accordance with law and after following the due process of law. (Para 12 & 13) Level 9 Biz Pvt. Ltd. v. Himachal Pradesh Housing and Urban Development Authority, 2024 LiveLaw (SC) 275

Administrative Law

Supreme Court delivers split verdict on appointment of Shiksha Karmi's in Madhya Pradesh. Krishnadatt Awasthy v. State of M.P., 2024 LiveLaw (SC) 279

Advocate

After the change of power from one political party to another, the States/Union Territories are changing their panel of Advocates appearing in this Court. Therefore, this Court is required to grant adjournments from time to time on the ground of change. It is true that the States/Union Territories have power to change their empanelled Advocates, but while doing so, they must ensure that the Court's functioning is not adversely affected. Therefore, it will be appropriate if the States/Union Territories while changing the panel of Advocates continue the old panel for at least 06 weeks so that the Courts are not forced to grant adjournments. Sachin Kumar v. State of Uttarakhand, 2024 LiveLaw (SC) 270

Arbitration and Conciliation Act. 1996

Section 34 & 37- Scope of interference of courts with arbitral awards – A judgment setting aside or refusing to set aside an arbitral award under Section 34 is appealable under Section 37. The jurisdiction under Section 37 is akin to the jurisdiction of the Court under Section 34 and restricted to the same grounds of challenge as Section 34. As per section 37(3) of Arbitration Act, a recourse to Section 37 is the only appellate remedy available against a decision under Section 34 and no second appeal shall lie from an order passed under Section 37. Held, nothing in the section 37(3) takes away the constitutional right under Article 136 to grant Special Leave to Appeal against a decision rendered in appeal under Section 37. This is the discretionary and exceptional jurisdiction of this Court to grant Special Leave to Appeal and it is a third stage at which this court tests the exercise of jurisdiction by the courts acting under Section 34 and Section 37 of the Arbitration Act. (Para 41, 42) Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd., 2024 LiveLaw (SC) 291

Section 34 (2-A) – Grounds for setting aside an arbitral award – A domestic award may be set aside if the Court finds that it vitiated by 'patent illegality' appearing on the face of the award. It is patent illegality, if the decision of the arbitrator is found to be perverse, or so irrational that no reasonable person would have arrived at it; or the construction of the contract is such that no fair or reasonable person would take; or, that the view of the arbitrator is not even a possible view. A 'finding' based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside under the head of 'patent illegality'. An award without reasons would suffer from patent illegality. The arbitrator commits a patent illegality by deciding a matter not within his jurisdiction or violating a fundamental principle of natural justice. (Para 40) Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd., 2024 LiveLaw (SC) 291

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

Criminal Law – Bail application – No specific prayer for bail in appeal petition – Held, the plea for bail in the context of the present appeal is implicit. Since the appeal, in substance, is against the judgment by which prayer for bail was refused, merely based on the manner of framing of reliefs or prayers in the subject-petition, the actual relief sought by the appellant would not stand eclipsed. (Para 16) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Caste Certificate

Maharashtra Scheduled Castes, Scheduled Tribes, De­Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000; Section 6, 7 & 9 and Maharashtra Scheduled Castes, De­notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules, 2012; Rule 13, 14 & 17 – The power to deal with such verification has been specifically vested with Scrutiny Committee and it falls within the exclusive domain of it in view of Rule 13(b) of 2012 Rules and Section 6. Section 7 further empowers the Scrutiny Committee with suo motu powers or otherwise to call for record and enquire into correctness of a caste certificate if it is of the opinion that such certificate was obtained fraudulently and also vests the Committee with the power to cancel and confiscate the certificate in question in accordance with law. Such order of Scrutiny Committee is said to be final and protected from any challenge before any authority except High Court under Article 226 of Constitution of India. For the purposes of verification, the Scrutiny Committee has all the powers of Civil Court while trying a civil suit. (Para 10 & 12) Navneet Kaur Harbhajansing Kundles v. State of Maharashtra, 2024 LiveLaw (SC) 278

In cases where the scrutiny committee has decided the validation of the caste claim, the Courts should refrain from interfering unless the committee's decision suffers from any perversity. Navneet Kaur Harbhajansing Kundles v. State of Maharashtra, 2024 LiveLaw (SC) 278

Central Goods and Services Act, 2017

Section 157 – Defense of 'Good faith' of statutory functionary– A good faith clause, is a provision of immunity to a statutory functionary against prosecution or legal proceedings. This immunity is limited and confined to acts done honestly and in furtherance of achieving the statutory purpose and objective. It is for the court or a judicial body to consider, adjudicate, and determine whether the claim that the action was done in good faith is made out or not depending on the facts and circumstances of each case. Held, observations made by High Court on the principle of good faith, is in the nature of advance rulings. Such tentative opinion of High court, even before the initiation of a suit, prosecution or legal proceeding, will affect the integrity and independence of that adjudication, compromising the prosecution and the defence equally. (Para 8, 9, 10 & 11) State of Gujarat v. Paresh Nathalal Chauhan, 2024 LiveLaw (SC) 295

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 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 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 294 – No formal proof of certain documents – The essential ingredient of Section 294(1) of the Cr.PC is that when any document is produced by the prosecution or the accused, the parties shall be called upon to admit or deny the genuineness of each such document. In this case, it is nobody's case that the appellant-accused was called upon to admit or deny the genuineness of the WhatsApp chats. (Para 21) Pankaj Singh v. State of Haryana, 2024 LiveLaw (SC) 274

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

Section 439 and National Investigation Agency Act, 2008; Section 21(2) – Jurisdiction of High Court to entertain Bail application – The jurisdiction of the High Court to consider the question of bail is coordinate with that of the Sessions Court and it has evolved as a matter of practice that an accused seeking bail ought to approach the Sessions Court before approaching the High Court. Further, the High Court adopted proper course while exercising jurisdiction under Section 439 of the 1973 Code to refer the matter to a Division Bench to decide the bail plea in accordance with Section 21(2) of the 2008 Act. (Para 12) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Section 451 – Custody and disposal of the property pending an inquiry or trial – When any property is produced before any criminal court during the course of inquiry or trial, it is the criminal court which would have the jurisdiction and the power to pass appropriate orders for the proper custody of such property or for selling or disposing of such property. The appellant without approaching the concerned court under Section 451 of CrPC, directly approached the High Court under Article 226/227 of the Constitution of India. Held, when there is a specific statutory provision contained in the CrPC. empowering the criminal court to pass appropriate order for the proper custody and disposal of the property pending the inquiry or trial, the appellant could not have invoked the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India seeking release of his vehicle. (Para 5 & 6) Khengarbhai Lakhabhai Dambhala v. State of Gujarat, 2024 LiveLaw (SC) 289

Whether prior sanction is mandatory for a Magistrate to forward a complaint against a public servant for investigation as per Section 156(3) CrPC. This issue was referred to a larger bench in 2018 in the case Manju Surana v. Sunil Arora. The issue was of wide relevance and was arising in several matters frequently, an earlier decision on the question referred is solicited. Shamim Khan v. Debashish Chakraborty, 2024 LiveLaw (SC) 305

Companies Act, 2013

Companies Act, 2013; Section 31(2) - Section 31(2) was thus introduced with the intention to confer validity on any alterations to the articles as if they were originally contained therein. Therefore, any increase in the share capital of the company also shall be valid as if it were originally there when the Articles of Association were first stamped. Legislature has specifically mentioned Articles of Association in Article 10 of Schedule-I of the Stamp Act, where stamp duty is to be charged inter alia on increase in the share capital of a company. Thus, in spite of Section 31(2) of the Companies Act, stamp duty will be payable on increased share capital. (Para 12 & 13) State of Maharashtra v. National Organic Chemical Industries Ltd., 2024 LiveLaw (SC) 285

Companies Act, 2013; Section 94 & 97 – A company is empowered to increase its share capital, by such amount as it thinks expedient, by passing a resolution in a general meeting. Once a resolution for authorising increase in share capital has been passed in terms of Section 94 of the Companies Act, a notice is required to be sent by the company in Form No.5 to the Registrar, pursuant to Section 97 of the Companies Act. (Para 7) State of Maharashtra v. National Organic Chemical Industries Ltd., 2024 LiveLaw (SC) 285

Conflict of Law

Conflict between laws – It is a settled position of law that in case of conflict between two laws, the general law must give way to the special law. A conjoined reading of the Stamp Act and the Companies Act would show that while the former governs the payment of stamp duty for all manner of instruments, the latter deals with all aspects relating to companies and other similar associations. In the case at hand, we are concerned with an instrument which is chargeable to Stamp Duty and finds its origin in the Companies Act. The various provisions of the Companies Act provide the purpose and scope of the instrument. Thus, it has to be said that the Companies Act is the special law and the Stamp Act is the general law with regards to Articles of Association, and the special will override the general. (Para 11) State of Maharashtra v. National Organic Chemical Industries Ltd., 2024 LiveLaw (SC) 285

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 14 & 21 – The right to a healthy environment and the right to be free from the adverse effects of climate change – The right to a healthy environment encapsulates the principle that every individual has the entitlement to live in an environment that is clean, safe, and conducive to their well-being. Even if there is no umbrella legislation in India which relates to climate change and the attendant concerns this does not mean that the people of India do not have a right against the adverse effects of climate change. As the havoc caused by climate change increases year by year, it becomes necessary to articulate this as a distinct right. It is recognised by Articles 14 and 21. Without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised. States are compelled to prioritize environmental protection and sustainable development, thereby addressing the root causes of climate change and safeguarding the wellbeing of present and future generations. It is a fundamental right of all individuals to live in a healthy and sustainable environment. (Para 19, 24, 25 & 35) M.K. Ranjitsinh v. Union of India, 2024 LiveLaw (SC) 286

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 20(3) and Narcotics Drugs and Psychotropic Substances Act, 1985; Section 42(1) – Power of search and seizure under Section 41(2) of the NDPS Act 1985, is inherently limited by the recognition of fundamental rights by the Constitution as well as statutory limitations. Article 20(3) of the Constitution would not be affected by the provisions of search and seizure. The statutory provisions conferring authorities with the power to search and seize are a mere temporary interference with the right of the accused as they stand well regulated by reasonable restrictions emanating from the statutory provisions itself. (Para 41) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

Article 21 – Right to just and fair trial – Actions of the authorities concerned within the meaning of the NDPS Act 1985 must be towards ensuring of upholding the rights of the accused in order to allow the accused to have a fair trial. (Para 24) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

Article 21 – Pre-conviction detention – Liberty of a pre-trial detenue – Detention before conclusion of trial at the investigation and post-chargesheet stage has the sanction of law but any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure. Pre-conviction detention must be proportionate in the facts of a given case depending on gravity and seriousness of the offence alleged to have been committed. (Para 38) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Article 136 – Interference not warranted – The Technical Assistants are not claiming against the 75% posts available for direct recruits. Their claim is only towards 25% posts which are required to be filled in from Junior Draughting Officers, Overseers and Technical Assistants who have put five year service and have acquired B.E./A.M.I.E. qualification. Held, the Technical Assistants are not encroaching upon the quota apportioned for directly recruited Assistant Engineers. The continuation of the appellants as Assistant Engineers would not amount to encroaching upon the 75% posts apportioned for the members of the appellants' association. Hence, any interference at this stage is likely to undo the settled position which has been prevalent almost for a period of last 18 years. (Para 21, 25 & 26) Association of Engineers v. State of Tamil Nadu, 2024 LiveLaw (SC) 304

Article 136 – Scope of interference in arbitral award – While adjudicating the merits of a Special Leave Petition and exercising its power under Article 136, the Supreme Court must interfere sparingly and only when exceptional circumstances exist, justifying the exercise of the Court's discretion. The Supreme Court must be slow in interfering with a judgement delivered in exercise of powers under Section 37 unless there is an error in exercising of the jurisdiction. Held, the judgment of the Division Bench provided more than adequate reasons to come to the conclusion that the arbitral award suffered from perversity and patent illegality. There was no valid basis for interference under Article 136 of the Constitution. (Para 43 & 71) Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd., 2024 LiveLaw (SC) 291

Article 136 – Special leave petition – Interference not required – Findings of the First Appellate Court and the High Court are based on evidence and is not perverse. (Para 11) Rajco Steel Enterprises v. Kavita Saraff, 2024 LiveLaw (SC) 306

Article 142 – Maintainability of the Curative Petition – Test of 'manifest injustice' – The exercise of the curative jurisdiction of this Court should not be adopted as a matter of ordinary course and create a fourth or fifth stage of court intervention in an arbitral award. The Court may entertain a curative petition to (i) prevent abuse of its process; and (ii) to cure a gross miscarriage of justice. The concern of the Court for rendering justice in a cause cannot be considered less important than the principle of finality. There are certain situations, which would require reconsideration of a final judgement even after the review has been dismissed to set right a miscarriage of justice. The interference by Supreme Court by setting aside the judgement of the Division Bench, has resulted in restoring a patently illegal award and has caused a grave miscarriage of justice. Hence, curative petition is allowed applying the standard of a 'grave miscarriage of justice'. (Para 32, 33 & 70) Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd., 2024 LiveLaw (SC) 291

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

Article 226 – Entertaining petition under Article 226 in case of availability of alternative remedy – The High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an alternate effective remedy is available. This rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. (Para 15) PHR Invent Educational Society v. Uco Bank, 2024 LiveLaw (SC) 294

Article 226 – Exceptions when a petition under Article 226 of the Constitution could be entertained in spite of availability of an alternative remedy – (i) where the statutory authority has not acted in accordance with the provisions of the enactment in question; (ii) it has acted in defiance of the fundamental principles of judicial procedure; (iii) it has resorted to invoke the provisions which are repealed; and (iv) when an order has been passed in total violation of the principles of natural justice. (Para 29) PHR Invent Educational Society v. Uco Bank, 2024 LiveLaw (SC) 294

Article 226 – Power of High court to interfere – Reopening the issue is not allowed under Article 226 – Held, the High Court could have interfered in the confirmed auction sale only in cases of fraud or collusion. As the case is not of fraud or collusion, the effect of the order of the High Court would be again reopening the issues which have achieved finality. (Para 26) PHR Invent Educational Society v. Uco Bank, 2024 LiveLaw (SC) 294

Article 226 – Writ jurisdiction – Jurisdiction of High Court to overturn finding of scrutiny committee – The High Court ought not to have interfered, especially when Scrutiny Committee had followed the due procedure under Rule 12, 17 and 18 of the 2012 Rules and that there was nothing perverse about a finding of fact. The order of validation of caste claim by Scrutiny Committee is based on subjective satisfaction. The Scrutiny Committee is an expert forum armed with fact finding authority. Held, order passed by Scrutiny Committee reflects due appreciation of evidence and application of mind and in absence of any allegation of bias/malice or lack of jurisdiction, disturbing the findings of Scrutiny Committee cannot be sustained. The High Court has clearly overstepped by re­appreciating the evidence in absence of any allegation of mala­fide or perversity. (Para 15, 17 & 19, 22) Navneet Kaur Harbhajansing Kundles v. State of Maharashtra, 2024 LiveLaw (SC) 278

Article 226 – Writ of certiorari – Object – The writ jurisdiction is supervisory and the Court exercising it, ought to refrain to act as an appellate court unless the facts so warrant. The writ of certiorari is expended as a remedy and is intended to cure jurisdictional error, and should not be used by superior Court to substitute its own views by getting into fact-finding exercise unless warranted. High Courts as well as Supreme Court should refrain themselves from deeper probe into factual issues like an appellate body unless the inferences made by the concerned authority suffers from perversity on the face of it or are impermissible in the eyes of law. (Para 17 & 19) Navneet Kaur Harbhajansing Kundles v. State of Maharashtra, 2024 LiveLaw (SC) 278

Article 293 – Borrowing by states – Plaintiff -State seeks interim injunction against Union of India to restore the position that existed before the Defendant union imposed ceiling on all the borrowings of the Plaintiff state – The Triple-Test, are followed by the Courts as the pre-requisites before a party can be mandatorily injuncted to do or to refrain from doing a particular thing. These three cardinal factors, are: (a) A 'Prima facie case', which necessitates that as per the material placed on record, the plaintiff is likely to succeed in the final determination of the case; (b) 'Balance of convenience', such that the prejudice likely to be caused to the plaintiff due to rejection of the interim relief will be higher than the inconvenience that the defendant may face if the relief is so granted; and (c)'Irreparable injury', which means that if the relief is not granted, the plaintiff will face an irreversible injury that cannot be compensated in monetary terms. Held, the Plaintiff – State has failed to establish a prima facie case that even after adjusting the over-borrowings of the previous year, there is fiscal space to borrow. The balance of convenience, thus, clearly lies in favour of the Defendant – Union of India as the mischief that is likely to ensue in the event of granting the interim relief, will be far greater than rejecting the same. Further Plaintiff – State has sought to equate 'financial hardship' with 'irreparable injury'. Held, it appears prima facie that 'monetary damage' is not an irreparable loss. If the State has essentially created financial hardship because of its own financial mismanagement, such hardship cannot be held to be an irreparable injury that would necessitate an interim relief against Union. Since the Plaintiff – State has failed to establish the three prongs of proving prima facie case, balance of convenience and irreparable injury, State of Kerala is not entitled to the interim injunction, as prayed for. (Para 3, 12, 25, 33, 35 & 37) State of Kerala v. Union of India, 2024 LiveLaw (SC) 269

Writ Jurisdiction – Jurisdiction of the Writ Court in entering into fact-finding exercise while testing legality of an award of tribunal – For revision of wages and other facilities, the standard criteria followed by the industrial adjudicator is the 'industry-cum-region test', which implies that the prevailing pay and other allowances should be compared with equally placed or similarly situated industrial units in the same region. To determine comparability of units applying the industry-cum-region test, the financial capacity of the employer would be a strong factor. Held, where the employer contested comparability of the concerned units, on grounds of its financial position, the proper course would have been to remit the matter to the Industrial Tribunal rather than entering into these factual question independently in exercise of the writ jurisdiction. The High Court ought not to re-appreciate evidence and substitute its own finding for that of the Tribunal, it would not be beyond the jurisdiction of the High Court in its power of judicial review to altogether eschew such a process. (Para 12 & 15) VVF Ltd. Employees Union v. VVF India Ltd., 2024 LiveLaw (SC) 299

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

Maintainability of commercial disputes – Appropriate remedy in commercial disputes – Investment made by the complainant was for deriving benefit, therefore, it would be an investment for profit/gain and such commercial transactions would be outside the purview of the 1986 Act. Commercial disputes cannot be decided in summary proceeding under the 1986 Act but the appropriate remedy for recovery of the said amount, would be before the Civil Court. The complaint was thus not maintainable. The District Forum, the State and the National Commissions fell in error in allowing the complaint. (Para 7) Annapurna B. Uppin v. Malsiddappa, 2024 LiveLaw (SC) 284

Maintainability of complaint when complainant deemed partner of firm – There was a registered partnership deed of the firm and there is no further document placed on record by the complainant regarding dissolution of the said registered deed. The said registered deed continued till the time when the investment was made by the complainant, hence, the complainant would be deemed to be partner of the firm. Once the complainant himself was a partner as per the registered partnership deed, he could not have maintained the complaint for settling the dispute with respect to the partnership firm. (Para 4.5 & 6) Annapurna B. Uppin v. Malsiddappa, 2024 LiveLaw (SC) 284

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

Contempt of Courts Act, 1971

It is a matter of serious concern that nowadays there has been a profuse misuse of social media platforms on which the messages, comments, articles etc. are being posted in respect of the matters pending in the Court. Though, our shoulders are broad enough to bear any blame or criticism, the comments or posts published in respect of the matters pending in the Court, through social media platforms under the guise of right to freedom of speech and expression, which have the tendency of undermining the authority of the Courts or of interfering with the course of justice, deserves serious consideration. It is very usual that the Judges do react during the course of arguments being made by the lawyers, sometimes in favour of and sometimes against a party to the proceeding. However, that does not give any right or leeway to either of the parties or their lawyers to the proceedings to post comments or messages on the social media distorting the facts or not disclosing the correct facts of the proceedings. The matter is required to be taken up more seriously when any such attempt is sought to be made by the party to the proceedings to cause prejudice to the proceedings or interfere with the course of administration of justice. Aminul Haque Laskar v. Karim Uddin Barbhuiya, 2024 LiveLaw (SC) 292

Corruption

Public Interest Litigation - Allegations of faulty contracts awarded by the State of Arunachal Pradesh to near relatives of the then Chief Minister. Direction for examination by the Comptroller and Auditor General of India (CAG). Voluntary Arunachal Sena v. State of Arunachal Pradesh, 2024 LiveLaw (SC) 283

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

Power of appellate court in reversal of acquittal – Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Held, no perversity or impossibility could be found in the approach adopted by the learned trial Judge. The elaborate exercise of the trial Judge, has been washed away by the High Court in a totally cursory manner. The judgment of High Court is based on conjectures and surmises. Impugned judgment of High Court is quashed and accused persons are acquitted. (Para 9, 14, 19 & 23) Ballu @ Balram @ Balmukund v. State of Madhya Pradesh, 2024 LiveLaw (SC) 271

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

Easements Act, 1882

Acquiring easementary right under Sale Deed – Easementary right could only be transferred via sale deed if the predecessor-in-interest had acquired or purchased the said property with any easementary right over the rasta in dispute. No evidence has been adduced to prove that, predecessor-in-interest, had perfected easementary rights over the disputed rasta and thus was legally entitled to transfer the same. Hence, failed to prove that easementary right is acquired under the sale deed. (Para 30, 36) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301

Section 4 – 'Easement' – A right which the owner or occupier of a land possesses for the beneficial enjoyment of his land on the other land which is not owned by him, to do and continue to do something or to prevent and continue to prevent something being done on the said land. The land which is to be enjoyed by the beneficiary is called 'Dominant Heritage' and the land on which the easement is claimed is called 'Servient Heritage'. The easementary right, therefore, is essentially a right claimed by the owner of a land upon another land owned by someone else so that he may enjoy his property in the most beneficial manner. (Para 19) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301

Section 13 – Acquiring easementary right by necessity – Such easementary right would arise if it is necessary for enjoying the Dominant Heritage. Held, if there is an alternative way to access the Dominant Heritage, which may be a little far away or longer, it demolishes the easement of necessity. Hence, not entitled to any easementary right by necessity. Easementary right under the Sale Deed would not stand extinguished even if the necessity has ceased to exist. (Para 32, 33 & 34) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301

Section 15 – Acquiring easementary right by prescription – For acquiring any easementary right by prescription, the said right must have been peaceably enjoyed in respect of the servient heritage without any interruption for over 20 years. The use of the term “last many years” is not sufficient to mean that they have been enjoying the same for the last 20 years. The pleadings fail to plead the essential legal requirement for establishing easementary right through prescription, hence, the same cannot be so construed as to impliedly include what actually has not been pleaded. A fact which is not specifically pleaded cannot be proved by evidence as evidence cannot travel beyond the pleadings. (Para 22 & 23) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301

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 Law

Representation of the People's Act, 1951 (RP Act); Section 100(1)(b), 100(1)(d)(i), 123(2) & 83(1)(b) – Election petition – Invalidation of election – On grounds that the appellant has committed corrupt practice and the result of the election was materially affected by the improper acceptance of nomination. Held, none of the allegations with regard to the false statements, and suppression and misrepresentation of facts with regard to his educational qualification or with regard to his liability in respect of the loan availed by him for his partnership firm or with regard to his default in depositing the employer's contribution to provident fund, would fall within the definition of “Corrupt practice” of “undue influence” as envisaged in Section 123(2) of the RP Act. (Para 16 & 19) Karim Uddin Barbhuiya v. Aminul Haque Laskar, 2024 LiveLaw (SC) 287

Representation of the People's Act, 1951; Section 83(1) (a) & 87 and Civil Procedure Code, 1908 Order VII Rule 11 – Rejection of election petition on grounds of incomplete contents of the petition – Lack of cause of action – The pleadings with regard to the allegation of corrupt practice have to be precise, specific and unambiguous. The Election petition lacks concise statement of “material facts” as contemplated in Section 83(a), and lacks “full particulars” of the alleged Corrupt practice as contemplated in Section 83(b) of the RP Act. Held, mere bald and vague allegations without any basis would not be sufficient compliance of the requirement of making a concise statement of the “material facts” in the Election Petition. If the allegations contained in Election Petition do not set out grounds as contemplated in Section 100 and do not conform to the requirement of Section 81 and 83 of the Act, the Election Petition is liable to be rejected under Order VII, Rule 11 of CPC. An omission of a single material fact leading to an incomplete cause of action or omission to contain a concise statement of material facts on which the Election petitioner relies for establishing a cause of action, would entail rejection of Election Petition. (Para 19. 20, 21 & 24) Karim Uddin Barbhuiya v. Aminul Haque Laskar, 2024 LiveLaw (SC) 287

Election Petition – Right to contest election or to question the election by means of an Election Petition is neither common law nor fundamental right. It is a statutory right governed by the statutory provisions of the RP Act. (Para 12) Karim Uddin Barbhuiya v. Aminul Haque Laskar, 2024 LiveLaw (SC) 287

Representation of the People Act, 1951; Section 100(1)(d)(iv) – Invalidation of election on grounds of non-compliance of Section 100(1)(d)(iv) – Candidates failure in disclosing the fact that he had occupied government accommodation and in filing the 'No Dues Certificate' in that regard, with his nomination form, cannot be said to be a defect of any real import as there were no actual outstanding dues payable by him in relation to the government accommodation occupied by him earlier. Every defect in the nomination cannot straightaway be termed to be of such character as to render its acceptance improper and each case would have to turn on its own individual facts, insofar as that aspect is concerned. There must be a distinction between non-disclosure of substantial issues as opposed to insubstantial issues, which may not impact one's candidature or the result of an election. Held, plaintiff did not sufficiently plead or prove a specific breach or how it materially affected the result of the election. (Para 40, 42, 48) Karikho Kri v. Nuney Tayang, 2024 LiveLaw (SC) 290

Representation of the People Act, 1951; Section 123(2), Motor Vehicles Act, 1988; Section 2(30) and Sale of Goods Act, 1930; Section 19 – Invalidation of election on grounds of corrupt practices by candidate – Non-disclosure of 3 vehicles – As per Section 2(30) of Act of 1988, an “Owner” is a person in whose name a motor vehicle stands registered. As per Section 19 of Act of 1930, where there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. Held, mere failure to get registered the name of the new owner of an already registered vehicle does not mean that the sale/gift transaction would stand invalidated and such a vehicle, despite being physically handed over to the new owner, cannot, by any stretch of imagination, be treated as still being in the possession and control of the former owner. Held, once it is accepted that the three vehicles in question were either gifted or sold before the filing of the nomination by candidate, the said vehicles cannot be considered to be still owned by candidate's wife and son for purposes other than those covered by the Act of 1988. Non-disclosure of the three vehicles registered in the names of the wife and son of candidate, could not be treated as an attempt of candidate to unduly influence the voters. Such non-disclosure cannot lead to invalidation of election on grounds of corrupt practices under Section 123(2). (Para 22, 27 & 28) Karikho Kri v. Nuney Tayang, 2024 LiveLaw (SC) 290

Constitution of India – Voters right to know – Candidates non-disclosure of fact of substantial character – Held, 'right to privacy' of the candidate would still survive as regards matters which are of no concern to the voter or are irrelevant to his candidature for public office. In that respect, non-disclosure of each and every asset owned by a candidate would not amount to a defect of a substantial character. Every case would have to turn on its own peculiarities and there can be no hard and fast or straitjacketed rule as to when the non-disclosure of a particular movable asset by a candidate would amount to a defect of a substantial character. (Para 44) Karikho Kri v. Nuney Tayang, 2024 LiveLaw (SC) 290

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 – Beyond reasonable doubt – The prosecution has failed to prove the appellant's guilt beyond a reasonable doubt. Hence, the impugned orders cannot be sustained, and they are hereby quashed and set aside. (Para 23) Pankaj Singh v. State of Haryana, 2024 LiveLaw (SC) 274

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

Tutored Witness – Benefit of doubt – Held, evidence of the PW2 – PW5 will have to be discarded as there is a distinct possibility that the said witnesses were tutored by the police on a day before it was recorded by trial court. This kind of interference by the Police with the judicial process, amounts to gross misuse of power by the Police machinery. Hence, there is a serious doubt created about the genuineness of the prosecution case and the benefit of this substantial doubt must be given to the appellants. Therefore, both the Sessions Court and the High Court have committed an error in convicting the appellants. (Para 8 & 9) Manikandan v. State by the Inspector of Police, 2024 LiveLaw (SC) 281

Conviction on the basis of circumstantial evidence – Prosecution to prove case beyond reasonable doubt – It is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. It is a primary principle that the accused 'must be' and not merely 'may be' proved guilty before a court can convict the accused. The facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused. The suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt and an accused cannot be convicted on the ground of suspicion. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. Held, the prosecution has failed to prove any of the incriminating circumstances beyond reasonable doubt and in no case, the chain of circumstances, which was so interlinked to each other that leads to no other conclusion, than the guilt of the accused persons. Held, the findings of the learned trial Judge are based on correct appreciation of the material placed on record. (Para 6, 7 & 13) Ballu @ Balram @ Balmukund v. State of Madhya Pradesh, 2024 LiveLaw (SC) 271

Circumstantial evidence – Proof of case based on circumstantial evidence – Circumstances from which the conclusion of the guilt is to be drawn should be fully established. The accused 'must be' and not merely 'may be' proved guilty before a court can convict the accused. It is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved'. The facts so established should be consistent only with the guilt of the accused. Suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, and is presumed to be innocent unless proved guilty beyond a reasonable doubt. Held, chain of circumstances as complete as leading to only the guilt of accused, not established. (Para 9) Ravishankar Tandon v. State of Chhattisgarh, 2024 LiveLaw (SC) 296

Documentary evidence – The photocopy of a document is inadmissible in evidence. (Para 36) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301

Evidence Act, 1872

Section 6 – Res gestae – Relevancy of facts forming part of same transaction – It is based on spontaneity and immediacy of such statement or fact in relation to the fact in issue. Provided that if there was an interval which ought to have been sufficient for purpose of fabrication then the statement recorded, even with slight delay may not be part of res gestae. Held, idea of search of the house of Accused No. 4, is an afterthought with an admitted time gap of 40­45 minutes. The search conducted at the residence of the Accused No. 04 is not a continuance of action based on the secret information received. (Para 27 & 28) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

Section 25 – Confession before a police officer – The bar under Section 25 of the IEA 1872 is not applicable against the admissibility of confessional statement made to the officers empowered under Section 41 and 42 of the NDPS Act 1985. (Para 50) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

Section 27 – Discovery – It is only so much of the information as relates distinctly to the fact thereby discovered would be admissible. It will be necessary for the prosecution to establish that, the information given by the accused while in police custody had led to the discovery of the fact, which was distinctly within the knowledge of the maker of the statement. Held, the prosecution will have to establish that, before the information given by the accused persons on the basis of which the dead body was recovered, nobody had the knowledge about the existence of the dead body at the place from where it was recovered. A perusal of the evidence reveals that the police as well as these witnesses knew about the death and the dead body being found prior to the statements of the accused persons being recorded under Section 27. Hence, the prosecution has failed to prove that the discovery of the dead body was only on the basis of the disclosure statement made by the accused persons under Section 27 and that nobody knew about the same before that. (Para 13, 14, 21 & 22) Ravishankar Tandon v. State of Chhattisgarh, 2024 LiveLaw (SC) 296

Section 27 – Discovery – Rationale behind the provision – If a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and it can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. (Para 13) Ravishankar Tandon v. State of Chhattisgarh, 2024 LiveLaw (SC) 296

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

Section 114A – Applicability of presumption as to absence of consent for offences under Section 376(2) – The condition precedent for applicability of Section 114A is that the prosecution must be for the offence of rape under various clauses set out under Section 376(2) of the IPC. No charge was framed against the appellant accused for the offence punishable under Section 376(2)(f) of the IPC. In the absence of the charge framed under Section 376(2)(f) of the IPC, neither the prosecution nor the victim can contend that Section 376(2)(f) of the IPC was applicable. Therefore, the presumption under Section 114A of the Evidence Act will not apply, and the burden will be on the prosecution to prove that the sexual intercourse was without the consent of the Prosecutrix. (Para 11) Pankaj Singh v. State of Haryana, 2024 LiveLaw (SC) 274

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

General Clauses Act, 1897

Section 3(22) – Good faith – Is an act done honestly, whether it is done negligently or not. (Para 8) State of Gujarat v. Paresh Nathalal Chauhan, 2024 LiveLaw (SC) 295

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

Hindu Widow's Remarriage Act, 1856

Section 2 – Right of widow in deceased husband's property to cease on marriage – Hence she could not convey any property over which she did not have any right or title. Held, the plaintiff who is the son of the widow and her second husband cannot claim share in suit property through the widow as the widow had lost her right over the subject property on her contracting second marriage. (Para 17 & 19) Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki, 2024 LiveLaw (SC) 293

Section 2 – Validity of lease deed – The validity of lease deed executed by the widow and her two sons is accepted to the extent it was made by the sons (sons of widow and deceased). Held, even if subsistence of a deed is proved in evidence, the title of the executing person does not automatically stand confirmed. If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary. (Para 18) Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki, 2024 LiveLaw (SC) 293

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

Insurance Law

Insurance Act, 1938; Section 45 – Repudiation of insurance claim on ground of material suppression of information in Proposal Form – The insurer cannot question the policy after the expiry of the time period and if it does, then the burden rests on the insurer to establish materiality of the fact suppressed and the knowledge of the insured about such suppression, so that the repudiation of the claim could be justified by the insurer. (Para 5 & 16) Mahakali Sujatha v. Future Generali India Life Insurance Company Ltd., 2024 LiveLaw (SC) 300

Insurance Act, 1938; Section 45 and Indian Evidence Act, 1872 – Burden of Proof in insurance contracts – In the context of insurance contracts, the burden is on the insurer to prove the allegation of non-disclosure of a material fact and that the non-disclosure was fraudulent. Held, the onus was on the insurer to show that the insured had fraudulently given false information and the said information was related to a material fact. Held, mere mentioning of certain details in an affidavit of evidence is not proof of the facts unless that is supported either by other documentary and/or oral evidence. The respondents have failed to prove the fact that the insured-deceased had fraudulently suppressed the information about the existing policies with other insurance companies while entering into the insurance contracts. Therefore, the repudiation of the policy was without any basis or justification. (Para 17, 38, 45, 51) Mahakali Sujatha v. Future Generali India Life Insurance Company Ltd., 2024 LiveLaw (SC) 300

Insurance Act, 1938; Section 45 – Suppression of material fact – In order to seek specific information from the insured, the proposal form must have specific questions so as to obtain clarity as to the underlying risks in the policy, which are greater than the normal risks – Held, no suppression of material fact as the query in proposal form was not clear regarding the nature of information that was sought. (Para 31 & 40) Mahakali Sujatha v. Future Generali India Life Insurance Company Ltd., 2024 LiveLaw (SC) 300

Insurance Contract – Principle of “uberrimae fidei”, i.e., utmost good faith – Law demands a higher standard of good faith in matters of insurance contracts – Insurance contracts are special contracts based on the general principles of full disclosure – When a specific fact is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information which is within the best of his knowledge. Held, whilst the proposer can only disclose what is known to him, the proposer's duty of disclosure is not confined to his actual knowledge, it also extends to those material facts which, in the ordinary course of business, he ought to know. However, the assured is not under a duty to disclose facts which he did not know and which he could not reasonably be expected to know at the material time. (Para 9, 18 & 29) Mahakali Sujatha v. Future Generali India Life Insurance Company Ltd., 2024 LiveLaw (SC) 300

Insurance Regulatory and Development Authority (Protection of Policyholders' Interests) Regulations, 2002; Section 2(d) – Definition of material – Any fact which has a bearing on the very foundation of the contract of insurance and the risk to be covered under the policy would be a “material fact”. Test of material fact – Any fact which would influence the judgment of a prudent insurer and not a particular insurer is a material fact. The materiality of a particular fact is determined by the circumstances of each case and is a question of fact. Held, insured has a duty to disclose all material facts. (Para 20, 21, 22 & 24 & 26) Mahakali Sujatha v. Future Generali India Life Insurance Company Ltd., 2024 LiveLaw (SC) 300

Insurer's burden to prove insured suppressed material facts. Mahakali Sujatha v. Future Generali India Life Insurance Company Ltd., 2024 LiveLaw (SC) 300

Interim Relief

Interim Relief – Injunction – Difference between prohibitory injunction and mandatory injunction – Prohibitory injunctions vary from mandatory injunctions in terms of the nature of relief that is sought. While the former seeks to restrain the defendant from doing something, the latter compels the defendant to take a positive step. The Courts are, therefore, relatively more cautious in granting mandatory injunction as compared to prohibitory injunction and thus, require the plaintiff to establish a stronger case. (Para 13, 14) State of Kerala v. Union of India, 2024 LiveLaw (SC) 269

International Law

International agreements and treaties – It is the duty of the Court to give effect to international agreements and treaties to which India is a party. India's international obligations and commitments have not been enacted in domestic law. Regardless, the Court must be alive to these obligations while adjudicating writ petitions which seek reliefs that may hinder these obligations from being fulfilled or otherwise interfere with India's international commitments as well as the right to be free from the adverse effects of climate change. (Para 56 & 58) M.K. Ranjitsinh v. Union of India, 2024 LiveLaw (SC) 286

Judgment

Releasing a case after it has been heard over a substantial period and judgment has been reserved compounds not merely the delay, but expense for parties, as well. In such a situation, parties would be required to engage counsel and incur legal fees all over again for a fresh round of hearings. (Para 4) Manbhupinder Singh Atwal v. Neeraj Kumarpal Shah, 2024 LiveLaw (SC) 307

Judicial Service

There cannot be any discrimination between the retired High Court judges, depending on their source of elevation (whether from the bar or the District Judiciary), while computing their pensionary benefits. Union of India v. Justice (Retd) Raj Rahul Garg, 2024 LiveLaw (SC) 277

Pensionary payments to Judges constitute a vital element in the independence of the judiciary. As a consequence of long years of judicial office, Judges on demitting office do not necessarily have the options which are open to members from other services. The reason why the State assumes the obligation to pay pension to Judges is to ensure that the protection of the benefits which are available after retirement would ensure their ability to discharge their duties without “fear or favour” during the years of judgeship. The purpose of creating dignified conditions of existence for Judges both during their tenure as Judges and thereafter has, therefore, a vital element of public interest. Courts and the Judges are vital components of the rule of law. Independence of the judiciary is hence a vital doctrine which is recognized in the constitutional scheme. The payment of salaries and dignified pensions serves precisely that purpose. Hence, any interpretation which is placed on the provisions of the Act must comport with the object and purpose underlying the enactment of the provision. (Para 25) Union of India v. Justice (Retd) Raj Rahul Garg, 2024 LiveLaw (SC) 277

Letter of Intent

The Letter of Intent is merely an expression of intention to enter into a contract. It does not create any right in favour of the party to whom it is issued. There is no binding legal relationship between the party issuing the LOI and the party to whom such LOI is issued. A detailed agreement/contract is required to be drawn up between the parties after the LOI is received by the other party more particularly in case of contract of such a mega scale. (Para 10) Level 9 Biz Pvt. Ltd. v. Himachal Pradesh Housing and Urban Development Authority, 2024 LiveLaw (SC) 275

Limitation

Limitation Act, 1963; Section 3 – Bar of limitation – Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. The use of the word 'shall' in the aforesaid provision connotes that the dismissal is mandatory subject to the exceptions in Section 4 to 24. Section 3 of the Act is peremptory and had to be given effect to even though no objection regarding limitation is taken by the other side or referred to in the pleadings. Hence, it is an obligation upon the court to dismiss an appeal which is presented beyond limitation. Section 3, being a substantive law of mandatory nature has to be interpreted in a strict sense. (Para 10 & 12) Pathapati Subba Reddy v. Special Deputy Collector, 2024 LiveLaw (SC) 288

Limitation Act, 1963; Section 5 – Exception to general rule of limitation in section 3 – Section 5 empowers the courts to admit an appeal even if it is preferred after the prescribed period provided the proposed appellant gives 'sufficient cause' for not preferring the appeal within the period prescribed. The courts are conferred with discretionary powers to condone the delay or to admit the appeal preferred after the expiry of time. Such power may not be exercised even if sufficient cause is shown based upon host of other factors such as negligence, failure to exercise due diligence etc. Section 5 of the Limitation Act is to be construed liberally. (Para 12) Pathapati Subba Reddy v. Special Deputy Collector, 2024 LiveLaw (SC) 288

Limitation Act, 1963; Section 3 & 5 – Application for condoning delay in filing appeal – The High Court, has not found it fit to exercise its discretionary jurisdiction of condoning the delay. Held, merely because some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal. Sufficient cause has not been shown for condoning the delay hence, there is no occasion for us to interfere with the decision of High Court. (Para 26 & 32) Pathapati Subba Reddy v. Special Deputy Collector, 2024 LiveLaw (SC) 288

Limitation Act, 1963 – Object – The law of limitation is founded on public policy – It is enshrined in the legal maxim “interest reipublicae ut sit finis litium” i.e. it is for the general welfare that a period of limitation be put to litigation. The object is to put an end to every legal remedy and to have a fixed period of life for every litigation as it is futile to keep any litigation or dispute pending indefinitely. (Para 7) Pathapati Subba Reddy v. Special Deputy Collector, 2024 LiveLaw (SC) 288

Limitation Act, 1963; Section 14 – Exclusion of time in computing the period of limitation – Execution application dismissed on grounds of being barred by limitation – Article 14 (2) carves out an exception excluding the period of limitation when the proceedings are being pursued with due diligence and good faith in a Court “which from defect of jurisdiction or other cause of a like nature, is unable to entertain it”. Held, it is apparent that the Plaintiff has pursued the matter bonafidely and diligently and in good faith before what it believed to be the appropriate forum and, therefore, such time period is bound to be excluded when computing limitation before the Court having competent jurisdiction. All conditions stipulated for invocation of Section 14 are fulfilled. (Para 27 & 38) Purni Devi v. Babu Ram, 2024 LiveLaw (SC) 273

J&K Limitation Act; Article 182 and Civil Procedure Code; Section 48 – Article 182 deals with period of Limitation of 3 years for filing an execution application for the first-time seeking enforcement of a decree. Meanwhile, Section 48 of the CPC deals with subsequent applications and fixes an outer limit of 12 years when execution remains unsatisfied. Held, the period from 'when the execution application was filed' to 'when the prior proceeding was dismissed', has to be excluded while computing period of limitation, which results in the execution application filed by the Plaintiff, being within the limitation period prescribed under Article 182 of the Limitation Act, which is 3 years. (Para 7 & 39) Purni Devi v. Babu Ram, 2024 LiveLaw (SC) 273

Condonation of delay – To condone delay of 12 years and 158 days in filing application for restoration of the Writ Petition – The High Court vide the impugned order declined to condone the delay. Held, the length of the delay is a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. Further, while considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. The appellants have failed to prove that they were reasonably diligent in prosecuting the matter and the vital test for condoning the delay is not satisfied. The High Court committed no error of law in passing the impugned order. (Para 26 & 34) Union of India v. Jahangir Byramji Jeejeebhoy, 2024 LiveLaw (SC) 276

Limitation – The rules of limitation are based on the principles of sound public policy and principles of equity and the 'Sword of Damocles' cannot be kept hanging over the head of the respondent for indefinite period of time to be determined at the whims and fancies of the appellants. Held, it appears that the appellants want to fix their own period of limitation for instituting the proceedings for which law has prescribed a period of limitation. (Para 26 & 27) Union of India v. Jahangir Byramji Jeejeebhoy, 2024 LiveLaw (SC) 276

Narcotics Drugs and Psychotropic Substances Act, 1985

Can accused get default bail if FSL report isn't submitted with chargesheet within prescribed time? The Supreme Court refers to the Larger Bench. Hanif Ansari v. State (Govt of NCT of Delhi), 2024 LiveLaw (SC) 302

Sections 41 & 42 – Mandatory compliance of procedure before search – Power of Magistrate and an Officer of Gazetted rank to issue warrant – Empowers a Magistrate to issue search warrant for the arrest of any person or for search, whom he has reason to believe to have committed any offence under the provisions of the NDPS Act 1985. As per Section 41(2), such reason to believe must arise from either personal knowledge or information given by any person to him and is required to be reduced into writing. The search conducted at the house of Accused No. 01 and Accused No. 04 was not based on the personal knowledge, rather it was an action bereft of mandatory statutory compliance of Section 41(2). The raid at the house of the Accused No. 01 and Accused No. 04 is in violation of the statutory mandate of Section 41(2) of the NDPS Act 1985. (Para 32, 42, 46 & 47) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

Section 42(1) – Power of entry, search, seizure and arrest without warrant or authorisation – The provision obligates an officer empowered by virtue of Section 41(2) to record the information received from any person regarding an alleged offence under Chapter IV of the NDPS Act 1985 or record the grounds of his belief as per the Proviso to Section 42(1), in case an empowered officer proceeds on his personal knowledge. The grounds of belief is to be conveyed to the immediate official superior, prior to the search and in case of any inability to do so, the Section 42(2) provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso. Absolute non­compliance of the statutory requirements under the Section 42(1) and (2) of the NDPS Act 1985 is verboten. However, any delay in the said compliance may be allowed considering the same is supported by well-reasoned explanations for such delay. (Para 31) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

Section 67 – Evidentiary value of confessional statements recorded under Section 67 – Information received under section 67 is not in the nature of a confessional statement. Such statements cannot be used against the accused. (Para 51 & 53) Najmunisha v. State of Gujarat, 2024 LiveLaw (SC) 298

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 – Civil and Criminal course adopted on same issue – Whether, a criminal proceeding can be initiated and the accused therein held guilty, in connection with a transaction, in respect of which a decree by a competent Court of civil jurisdiction, already stands passed? Held, civil court judgments are not binding on criminal courts, but the ratio of the civil proceedings would be binding on criminal proceedings for certain limited purposes such as sentence or damages imposed by the criminal court. The Court in criminal jurisdiction would be bound by the civil Court having declared the cheque to be only for the purposes of security. The civil Court having declared the cheque (subject matter of dispute) to be only for the purposes of security, the criminal proceedings for cheque dishonour under Section 138 of the Negotiable Instruments Act would be unsustainable in law and, therefore liable to be quashed and set aside. The damages as imposed by the Courts must be returned to the appellant. (Para 8, 11 & 12) Prem Raj v. Poonamma Menon, 2024 LiveLaw (SC) 272

Section 138 – Dishonouring of cheque – Held, existence of any “enforceable debt or other liability” not found. Petitioner's case not made out. (Para 11) Rajco Steel Enterprises v. Kavita Saraff, 2024 LiveLaw (SC) 306

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

Partnership

Liability of legal heirs on death of partner of firm – Held, legal heirs of a deceased partner do not become liable for any liability of the firm upon the death of the partner. (Para 8) Annapurna B. Uppin v. Malsiddappa, 2024 LiveLaw (SC) 284

Penal Code, 1860

Section 120B and Prevention of Money-Laundering Act, 2002; Section 2(1) (y) – Schedule offence – Offence punishable under Section 120B of the IPC could become a scheduled offence only if the conspiracy alleged is of committing an offence which is included in the Schedule to the PMLA. Held, the offences alleged in the complaint except Section 120-B of IPC are not scheduled offences within the meaning of Section 2(1) (y) of the PMLA. (Para 2, 3) Yash Tuteja v. Union of India, 2024 LiveLaw (SC) 310

Section 376(2) (f) – Fiduciary relationship – Held, appellant was not in a position of trust towards the prosecutrix. Hence, there was no fiduciary relationship between the appellant-accused and the Prosecutrix. (Para 7 & 11) Pankaj Singh v. State of Haryana, 2024 LiveLaw (SC) 274

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

Power of Attorney Holder

Attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. Evidence given by person who has no authority to act as power of authority, is meaningless to establish. (Para 28 & 29) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301

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

Prevention of Money-Laundering Act, 2002

Section 2(1) (y), 2(1) (u) & 3 and Criminal Procedure Code, 1973; Section 203 & 204 – Schedule offence – In absence of scheduled offence, there cannot be any proceeds of crime within the meaning Section 2(1) (u) of the PMLA. Proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property. Existence of the proceeds of crime is a condition precedent for the applicability of Section 3 of the PMLA. If there are no proceeds of crime, the offence under Section 3 of the PMLA is not made out. Hence, there is no need of the Special Court to apply its mind in accordance with Section 203 r.w 204 of the Cr.PC to find out whether a prima facie case is made out or not. (Para 4, 6 & 7) Yash Tuteja v. Union of India, 2024 LiveLaw (SC) 310

Protection of Children from Sexual Offences Act, 2012

Protection of Children from Sexual Offences Act, 2012 - Failure to mask victim's identity in POCSO case - Sensitization of Judicial and Police Officers ordered - In this order, the court considers an application for anticipatory bail in a case under the POCSO Act. While denying bail, the court notes a violation of Section 33(7) of the POCSO Act and Section 228A of the IPC regarding the disclosure of the victim's identity. Citing the importance of safeguarding the victim's identity, the court directs the need for sensitization of judicial and police officers in West Bengal to ensure compliance with these provisions. The order emphasizes that disclosing the victim's identity is permissible only in specific circumstances for the child's best interest. The court orders a copy of the order to be forwarded to the Registrar General of the High Court of Calcutta for further action. Utpal Mandal @ Utpal Mondal v. State of West Bengal, 2024 LiveLaw (SC) 282

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

Prospective Application of Judgment - B.Ed. Qualification for Primary School Teachers - Review Petition - Equitable Retention of Employment - Bridge Course Requirement - The Judgment delivered on 11th August, 2023, concerning the eligibility criteria for B.Ed. candidates to be appointed as primary school teachers, shall have prospective operation. Candidates appointed prior to this date, based on B.Ed. qualification without any disqualification imposed by a court of law or without a stipulation that their appointment was subject to the final outcome of a case, shall retain their employment. However, such candidates must undergo a bridge course within a year from the date of the judgment to validate their appointments. The National Council for Teacher Education, under the supervision of the Ministry of Education, is directed to devise this course, applicable nationwide. Failure to complete the course within the specified timeframe will invalidate the appointment. The court further extends these directions to cover all similar cases pending in different judicial fora across states and union territories. Devesh Sharma v. Union of India, 2024 LiveLaw (SC) 297

Regularization of service – UGC directions must be followed by universities – UGC's letter to University directing regularization of the teachers who were selected through a regular selection process and possessed required qualifications was not followed by university. Appellants' appointments were made according to a regular selection process. Held, considering the statutory position of UGC, there was no reason for the University not to follow directions of UGC. The University's action of not continuing them and starting a fresh selection process is unjust, arbitrary and violative of Article 14 of the Constitution of India. Therefore, the employment of the appellants will have to be continued after merger with the regular establishment of the University. Respondents directed to reinstate the appellants. (Para 20, 23 & 28) Meher Fatima Hussain v. Jamia Milia Islamia, 2024 LiveLaw (SC) 303

Termination from service – Violation of principles of natural justice – Termination of the services of the appellant without holding disciplinary enquiry was unjustified and dehors the requirements of law and in gross violation of principles of natural justice. Termination order declared illegal and appellant reinstated in service. (Para 19 & 20) Sandeep Kumar v. GB Pant Institute of Engineering and Technology, 2024 LiveLaw (SC) 308

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

Stamp Act

Bombay Stamp Act, 1958; Section 2(l) & Article 10 of Schedule-I – Form No. 5 is not an instrument. It is only the articles which are an instrument within the meaning of Section 2(l) of the Stamp Act and accordingly have been mentioned in Article 10 of Schedule-I of the Stamp Act. Stamp Duty is affixed on Form No. 5 only as a matter of practical convenience because a company itself cannot carry out the alterations and record the increase in share capital in its Articles of Association. (Para 9) State of Maharashtra v. National Organic Chemical Industries Ltd., 2024 LiveLaw (SC) 285

Bombay Stamp Act, 1958; Article 10 of Schedule-I – After amendment of Article 10, “increased share capital” is a part of Article 10 – The effect of adding “increased share capital” is that stamp duty will be charged on subsequent increases in the authorised share capital, subject to the maximum cap. The ceiling of Rs. 25 lakhs is applicable on Articles of Association and the increased share capital therein, not on every increase individually. Even if the amendment does not have retrospective effect and the increase was initiated by the respondent after the cap was introduced, since the instrument 'Articles of Association' remains the same, the duty already paid on the same instrument will have to be considered. In case stamp duty equivalent to or more than the cap has already been paid, no further stamp duty can be levied. (Para 15 & 18) State of Maharashtra v. National Organic Chemical Industries Ltd., 2024 LiveLaw (SC) 285

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

Sub-delegation of Powers

The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney. Hence, ordinarily there cannot be any sub-delegation. (Para 28) Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024 LiveLaw (SC) 301

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

Section 15 & 16 of the 1967 Act –Terrorist act – Section 15(1) refers to certain acts which would constitute a terrorist act. To qualify for being a terrorist act, an act must be done with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India or such act must be accompanied with an intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country. In sub-clauses (a), (b), and (c) of section 15(1), the law stipulates the manner of commission of the acts to come within the ambit of the expression “terrorist act” under the 1967 legislation. Held, prima facie commission or attempt to commit any terrorist act by the appellant not found. (Para 30) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Section 17 – Funding terrorist act – Held, no corroboration of the allegation that the appellant has funded any terrorist act or has received any money for that purpose. No prima facie case made out. (Para 31) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Section 18 – Conspiracy or attempt to commit, advocate, abet, advice, incite or facilitate commission or any terrorist act. Held, mere participation in some meetings and attempt to encourage women to join the struggle for new democratic revolution, prima facie, do not reveal the commission of an offence under Section 18 of the 1967 Act. (Para 32) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Section 20 & 38 – Membership of terrorist organisation – Mere meeting of accused individuals or being connected with them through any medium cannot implicate one in Chapter VI offences under of the 1967 Act, in the absence of any further evidence of being associated with a terrorist organisation. The offence under Section 20 not made out. (Para 34 & 35) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Section 43D (5) – Bail – Long period of incarceration was held to be a valid ground to enlarge an accused on bail in spite of the bail restricting provision of Section 43D (5) of the 1967 Act. Taking cognizance of the composite effect of delay in framing charge, period of detention undergone by the accused, the nature of allegations against her vis-à-vis the materials available before this Court at this stage in addition to her age and medical condition, she ought not to be denied the privilege of being enlarged on bail pending further process. (Para 36 & 41) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280

Waqf Act, 1995

The original jurisdiction to decide the issue pertaining to Mutawalliship vests with the Waqf board and not the Waqf Tribunal. S V Cheriyakoya Thangal v. S.V P Pookoya, 2024 LiveLaw (SC) 309