Citations: 2023 LiveLaw (SC) 844 To 2023 LiveLaw (SC) 863

SUBJECT WISE INDEX

Burden of Proof

Distinction between the burden of proof and the burden of going forward with the evidence. Generally, the burden of proof upon any affirmative proposition necessary to be established as the foundation of an issue does not shift, but the burden of evidence or the burden of explanation may shift from one side to the other according to the testimony. Thus, if the prosecution has offered evidence which if believed by the court would convince them of the accused's guilt beyond a reasonable doubt, the accused is in a position where he should go forward with counter-vailing evidence if he has such evidence. When facts are peculiarly within the knowledge of the accused, the burden is on him to present evidence of such facts, whether the proposition is an affirmative or negative one. He is not required to do so even though a prima facie case has been established, for the court must still find that he is guilty beyond a reasonable doubt before it can convict. However, the accused's failure to present evidence on his behalf may be regarded by the court as confirming the conclusion indicated by the evidence presented by the prosecution or as confirming presumptions which might have been rebutted. Although not legally required to produce evidence on his own behalf, the accused may therefore as a practical matter find it essential to go forward with proof. This does not alter the burden of proof resting upon the prosecution. (Para 46) Balvir Singh v. State of Uttarakhand, 2023 LiveLaw (SC) 861 : 2023 INSC 879

Child Custody

Visitation in court premises not in child's interest - Allows father to meet child in mall. Adarsh C.B. v. Aswathy Sidharthan, 2023 LiveLaw (SC) 847

Constitution of India

Parliamentary or State law wouldn’t apply to Scheduled V area only if the Governor notifies so. South Eastern Coalfields Ltd v. State of M.P., 2023 LiveLaw (SC) 851 : 2023 INSC 865

Covid 19

When the whole world was in the grip of devastating pandemic, it could never have been said that the parties were sleeping over their rights. It is, at this juncture, that this Court stepped in and after taking suo motu cognizance passed orders under Article 142 of the Constitution of India extending the deadlines. The extraordinary situation was dealt with rightly by extraordinary orders protecting the rights of parties by ensuring that their remedies and defences were not barred. (Para 10) Aditya Khaitan v. IL and FS Financial Services Ltd., 2023 LiveLaw (SC) 845 : 2023 INSC 867

Crimes against Women

The role of courts in such circumstances assumes greater importance and it is expected that the courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities, perfunctory investigation or insignificant lacunas in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The courts are expected to be sensitive in cases involving crime against women. (Para 62) Balvir Singh v. State of Uttarakhand, 2023 LiveLaw (SC) 861 : 2023 INSC 879

Defamation

Magistrate can dismiss defamation complaint by applying exceptions under Section 499 IPC before issuing summons to accused. Iveco Magirus Brandschutztechnik Gmbh v. Nirmal Kishore Bhartiya, 2023 LiveLaw (SC) 860 : 2023 INSC 880

Electricity

The Supreme Court criticises OERC for challenging APTEL's order, saying the quasi-judicial body can't be aggrieved with the appellate body's order. GRIDCO Ltd. v. Western Electricity Supply Company, 2023 LiveLaw (SC) 855 : 2023 INSC 872

Enforcement

Why must the ED furnish grounds of arrest to the accused in writing? the Supreme Court explains. Pankaj Bansal v. Union of India, 2023 LiveLaw (SC) 844 : 2023 INSC 866

Mere non-cooperation to ed summons not a ground for arrest under PMLA; ED can't expect admission of guilt from a person summoned. Pankaj Bansal v. Union of India, 2023 LiveLaw (SC) 844 : 2023 INSC 866

ED can't be vindictive, grounds of arrest must be furnished in writing to accused at the time of arrest. Pankaj Bansal v. Union of India, 2023 LiveLaw (SC) 844 : 2023 INSC 866

Evidence

Principles of applying Section 106 of Evidence Act : Supreme Court explains. Balvir Singh v. State of Uttarakhand, 2023 LiveLaw (SC) 861 : 2023 INSC 879

Frivolous Applications

Petitioner has every time managed to ensure that the trial does not proceed further by filing some frivolous applications before the Trial Court and then upon its rejection, approaching the High Court and the Supreme Court afterwards. Such abuse and misuse of the process of law requires to be dealt with firmly. Imposed costs of Rs. 3 Lakh to be deposited to the High Court Advocates Welfare Fund. Sanjiv Kumar Rajendrabhai Bhatt v. State of Gujarat, 2023 LiveLaw (SC) 852

Hindu Law

A Karta of a Hindu Undivided Family (HUF) has the right to sell / dispose of / alienate an HUF property, even if a minor of the family has undivided interest. The reason is that an HUF is capable of acting through its Karta or an adult member of the family in the management of the HUF property. Other member(s) of the HUF need not be consenting parties to it. Post alienation, a coparcener may challenge the act of a Karta, if the alienation is not for legal necessity or for betterment of the estate. N.S. Balaji v. Debts Recovery Tribunal, 2023 LiveLaw (SC) 853

Insurance

Theft coverage denied saying gold wasn't kept in 'locked safe' - Insurance claim cannot be rejected based on ambiguous term. (Para 3) Mehta Jewellers v. National Insurance Company Ltd., 2023 LiveLaw (SC) 859

Juvenile

JJ Act - 'May' in Section 19(1) be read as 'shall'; the Children's Court must hold an inquiry on whether a child should be tried as an adult. Ajeet Gurjar v. State of Madhya Pradesh, 2023 LiveLaw (SC) 857 : 2023 INSC 875

Legal Maxim

“Vigilantibus non dormientibus jura subveniunt” - which says that the law assists those who are vigilant, not those who sleep over their rights, would not be applicable to this case. (Para 9) Aditya Khaitan v. IL and FS Financial Services Ltd., 2023 LiveLaw (SC) 845 : 2023 INSC 867

Limitation

Orders extending limitation period during covid-19 also apply to period up to which delay can be condoned. (Para 17) Aditya Khaitan v. IL and FS Financial Services Ltd., 2023 LiveLaw (SC) 845 : 2023 INSC 867

Marriage

Hindu marriage can be dissolved through customary divorce if the existence of such a customary right is established. Sanjana Kumari v. Vijay Kumar, 2023 LiveLaw (SC) 848

Mobile Tower

State govt has power to impose permit fee on erection of mobile towers. Bharat Sanchar Nigam Ltd; v. State of Chhattisgarh, 2023 LiveLaw (SC) 849

Money Laundering

PMLA - If arrest of accused isn't valid & lawful as per Section 19, an order of remand shall fail on that ground. Pankaj Bansal v. Union of India, 2023 LiveLaw (SC) 844 : 2023 INSC 866

Narcotic Drugs

Section 50 NDPS Act not applicable to recovery from bag carried by a person. Ranjan Kumar Chadha v. State of Himachal Pradesh, 2023 LiveLaw (SC) 856 : 2023 INSC 878

'Contraband recovered in violation of section 50 NDPS Act inadmissible' : Supreme Court summarises principles for search of persons. Ranjan Kumar Chadha v. State of Himachal Pradesh, 2023 LiveLaw (SC) 856 : 2023 INSC 878

Public Sector

Any loss caused to an undertaking or corporation which is fully owned by the State, is a loss caused to the Public Exchequer. (Para 21) Karnataka State Electronics Development Corporation Ltd. v Kumaon Entertainment and Hospitalities Pvt. Ltd., 2023 LiveLaw (SC) 863 : 2023 INSC 871

Reservation

Temporary Posts - Government has informed that reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes will be given in temporary appointments which are to last for 45 days or more. Instructions have been issued to all Ministries and Departments to strictly implement this reservation in temporary posts. Aggrieved parties may seek legal remedies in cases of violation of the Office Memorandum. Md Imran Ahmad v. Union of India, 2023 LiveLaw (SC) 854

SARFAESI Act

'Article 142 can't be invoked against statute': Supreme Court refuses to extend time under SARFAESI rules for purchaser's deposit. Union Bank of India v. Rajat Infrastructure Pvt. Ltd., 2023 LiveLaw (SC) 846 : 2023 INSC 869

Service Law

Departmental Proceedings - Acquittal - The nature of proceedings being wholly separate and distinct, acquittal in criminal proceedings does not entitle the delinquent employee for any benefit in the latter or automatic discharge in departmental proceedings. (Para 29.2) State Bank of India v. P. Zandenga, 2023 LiveLaw (SC) 850

Scheduled Caste and Scheduled Tribes

State Government’s power to delegate investigation into offenses under SC/ST act cannot be curtailed by rules. Sunil Kumar v. Lala Saurabh Verma, 2023 LiveLaw (SC) 858

Will

Will can't be presumed to be valid merely because it is registered. Dhani Ram v. Shiv Singh, 2023 LiveLaw (SC) 862 : 2023 INSC 876

Woman

Courts should be sensitive in cases of crimes against women, ensure criminals don’t escape on technicalities. Balvir Singh v. State of Uttarakhand, 2023 LiveLaw (SC) 861 : 2023 INSC 879

Words and Phrases

“Prima facie” - The Latin expression prima facie means “at first sight”, “at first view", or "based on first impression". According, to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evi-Ideuce sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties. (Para 47) Balvir Singh v. State of Uttarakhand, 2023 LiveLaw (SC) 861 : 2023 INSC 879

STATUTE WISE INDEX

Code of Criminal Procedure, 1973; Section 167 - Prevention of Money Laundering Act, 2002; Section 19 – The Court, while remanding any person arrested by the ED, has a foremost duty to verify and ensure that the arrest is valid and lawful. In the event the Court fails to discharge this duty in right earnest and with the proper perspective, the order of remand would fail on that ground itself. (Para 16) Pankaj Bansal v. Union of India, 2023 LiveLaw (SC) 844 : 2023 INSC 866

Code of Criminal Procedure, 1973; Section 482 - In a case where the offence of defamation is claimed by the accused to have not been committed based on any of the Exceptions and a prayer for quashing is made, law seems to be well settled that the High Courts can go no further and enlarge the scope of inquiry if the accused seeks to rely on materials which were not there before the Magistrate. This is based on the simple proposition that what the Magistrate could not do, the High Courts may not do. However, this does not undermine the High Courts’ powers under section 482, Cr. PC and that its inherent power is always available to render real and substantial justice. The High Courts on recording due satisfaction are empowered to interfere if on a reading of the complaint, the substance of statements on oath of the complainant and the witness, if any, and documentary evidence as produced, no offence is made out and that proceedings, if allowed to continue, would amount to an abuse of the legal process. This too, would be impermissible, if the justice of a given case does not overwhelmingly so demand. (Para 46) Iveco Magirus Brandschutztechnik Gmbh v. Nirmal Kishore Bhartiya, 2023 LiveLaw (SC) 860 : 2023 INSC 880

Constitution of India 1950 - Article 142 cannot be invoked to override statutory provisions. The inherent powers though wide in its amplitude, cannot be exercised to supplant the substantive law applicable to the case or to the cause under consideration of the court. (Para 17) Union Bank of India v. Rajat Infrastructure Pvt. Ltd., 2023 LiveLaw (SC) 846 : 2023 INSC 869

Constitution of India, 1950; Article 22 - Prevention of Money Laundering Act, 2002; Section 19 – Power to Arrest – Directorate of Enforcement (ED) should furnish the grounds of arrest to the accused in writing at the time of arrest. (Para 35) Pankaj Bansal v. Union of India, 2023 LiveLaw (SC) 844 : 2023 INSC 866

Constitution of India, 1950; Entry 49 of List II – Fees on erection of mobile tower – Held, the State Government has the authority to impose permit fees on the erection of mobile towers. The tax or fee applicable is on the use of the land and building where the mobile tower is installed, not on the tower itself. (Para 13) Bharat Sanchar Nigam Ltd; v. State of Chhattisgarh, 2023 LiveLaw (SC) 849

Constitution of India, 1950; Paragraph 5(1) of the Fifth Schedule - Law applicable to Scheduled Areas - Unless a notification has been issued by the Governor indicating that (I) a parliamentary or state law shall have no application to the Scheduled Area; or (ii) the parliamentary or state legislation would apply subject to exceptions or modifications, there would be no hindrance in the application of the law to the State. (Para 13) South Eastern Coalfields Ltd v. State of M.P., 2023 LiveLaw (SC) 851 : 2023 INSC 865

Electricity Act, 2003; Section 62 and 111 - Electricity Regulatory Commission - the Commission exercises quasi-judicial powers. There are appeals preferred by the Commission against the orders of the Appellate Tribunal in appeals. The Appellate Tribunal in appeals has dealt with the legality and validity of the decisions of the Commission rendered in the exercise of quasi-judicial power. In short, the Appellate Tribunal has tested the correctness of the orders of the Commission. The Commission is bound by the orders of the Appellate Tribunal. Therefore, we have serious doubt about the propriety and legality of the act of the Commission of preferring appeals against the orders of the Appellate Tribunal in appeal by which its own orders have been corrected. The Commission cannot be the aggrieved party except possibly in one appeal where the issue was about the non-compliance by the Commission of the orders of the Appellate Tribunal. If the Commission was exercising legislative functions, the position would have been different. (Para 26) GRIDCO Ltd. v. Western Electricity Supply Company, 2023 LiveLaw (SC) 855 : 2023 INSC 872

Electricity Act, 2003; Section 84 and 125 - Electricity Regulatory Commission - Members of the Commission are experts in the field - Therefore, when we consider the challenge to the decisions of the Commission and the Appellate Tribunal, we must keep in mind that the decisions are of a body of experts. This limitation is apart from the constraints of Section 125 of the Electricity Act of entertaining an appeal only on a substantial question of law. Therefore, this Court will normally be slow in interfering with the factual findings recorded by the Commission and/or by the Appellate Tribunal. (Para 25) GRIDCO Ltd. v. Western Electricity Supply Company, 2023 LiveLaw (SC) 855 : 2023 INSC 872

Evidence Act, 1872; Section 106 - Burden of proving fact especially within knowledge - Principles of law governing the applicability of Section 106 – Explained. (Para 33 - 46) Balvir Singh v. State of Uttarakhand, 2023 LiveLaw (SC) 861 : 2023 INSC 879

Evidence Act, 1872; Section 106 - Section 106 of the Evidence Act does not inherently impose a burden on the accused but comes into play when the accused fails to provide any explanation regarding facts that should be within their knowledge, facts that could support theories compatible with their innocence. (Para 56) Balvir Singh v. State of Uttarakhand, 2023 LiveLaw (SC) 861 : 2023 INSC 879

Hindu Marriage Act, 1955; Section 29 (2) - A Hindu marriage can be dissolved through a customary divorce deed, provided the existence of such a customary right is established. (Para 6) Sanjana Kumari v. Vijay Kumar, 2023 LiveLaw (SC) 848

Juvenile Justice (Care and Protection of Children) Act, 2015; Section 19(1)(i) - Children's Court must hold an inquiry to determine whether the child should be tried as an adult. (Para 9 - 12) Ajeet Gurjar v. State of Madhya Pradesh, 2023 LiveLaw (SC) 857 : 2023 INSC 875

Narcotic Drugs and Psychotropic Substances Act, 1985 - Conditions for personal search as specified in Section 50 of the NDPS Act are applicable only for the search of the physical body of the person and not for the search of any bag carried by the person. (Para 125) Ranjan Kumar Chadha v. State of Himachal Pradesh, 2023 LiveLaw (SC) 856 : 2023 INSC 878

Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 of the NDPS Act envisions certain requirements for conducting searches, which include the right of the person to be searched to have the search conducted in the presence of a Gazetted Officer or Magistrate if they so desire. The police officer has the obligation to inform the person of this right before proceeding with the search. If the person declines to exercise this right, the search can proceed, but a written statement should be taken from the person indicating their choice. The communication of this right should be clear, either orally or in writing, and should provide only two options: a Gazetted Officer or a Magistrate, who must be independent and not connected to the raiding party. Each person to be searched in a group must be individually informed of their right. If the right is exercised, the police officer can choose whether to take the suspect before a Gazetted Officer or Magistrate, with an endeavor to take them before the nearest Magistrate. Section 50 applies exclusively to searches under the NDPS Act and does not apply to searches conducted under any other statute. In cases where contraband under the NDPS Act is discovered during a search under another statute, the NDPS Act provisions come into effect, even if Section 50 compliance was not required. The burden of proving compliance with Section 50 rests on the prosecution, and any incriminating contraband recovered in violation of Section 50 is inadmissible but does not vitiate the trial, while other articles recovered may be used in separate proceedings. (Para 64) Ranjan Kumar Chadha v. State of Himachal Pradesh, 2023 LiveLaw (SC) 856 : 2023 INSC 878

Penal Code, 1860; Section 499 - Magistrate can dismiss defamation complaint by applying the exceptions under section 499 IPC even before issuing summons to the accused. (Para 44) Iveco Magirus Brandschutztechnik Gmbh v. Nirmal Kishore Bhartiya, 2023 LiveLaw (SC) 860 : 2023 INSC 880

Prevention of Money Laundering Act, 2002 - Directorate of Enforcement (ED) - Being a premier investigating agency, charged with the onerous responsibility of curbing the debilitating economic offence of money laundering in our country, every action of the ED in the course of such exercise is expected to be transparent, above board and conforming to pristine standards of fair play in action. The ED, mantled with far-reaching powers under the stringent Act of 2002, is not expected to be vindictive in its conduct and must be seen to be acting with utmost probity and with the highest degree of dispassion and fairness. (Para 20) Pankaj Bansal v. Union of India, 2023 LiveLaw (SC) 844 : 2023 INSC 866

Prevention of Money Laundering Act, 2002; Section 19 - In any event, it is not open to the ED to expect an admission of guilt from the person summoned for interrogation and assert that anything short of such admission would be an ‘evasive reply’. (Para 25) Pankaj Bansal v. Union of India, 2023 LiveLaw (SC) 844 : 2023 INSC 866

Prevention of Money Laundering Act, 2002; Section 19 and 50 - Mere noncooperation of a witness in response to the summons would not be enough to render him/her liable to be arrested. (Para 25) Pankaj Bansal v. Union of India, 2023 LiveLaw (SC) 844 : 2023 INSC 866

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 9(1)(b) of the SC/ST Act grants State Governments the power to delegate the authority to arrest, investigate, and prosecute offenders. This delegation of power is a vital aspect of the Act and should not be curtailed by any rules framed under Section 23 of the SC/ST Act. Sunil Kumar v. Lala Saurabh Verma, 2023 LiveLaw (SC) 858

Security Interest (Enforcement) Rules, 2002; Rule 9 - Multiple applications for extension of time to deposit the outstanding sale amount and interest – Held, the Miscellaneous Application was not maintainable in light of the applicant's failure to comply with the court's orders and statutory provisions - The Court discouraged the practice of filing repeated Miscellaneous Applications without legal foundation and stressed the importance of adhering to statutory procedures. (Para 18) Union Bank of India v. Rajat Infrastructure Pvt. Ltd., 2023 LiveLaw (SC) 846 : 2023 INSC 869

Succession Act, 1925; Section 63 - Evidence Act, 1872; Section 68 and 71 – A Will cannot be presumed to be valid merely because it is registered. (Para 9) Dhani Ram v. Shiv Singh, 2023 LiveLaw (SC) 862 : 2023 INSC 876

NOMINAL INDEX

1. Adarsh C.B. v. Aswathy Sidharthan, 2023 LiveLaw (SC) 847
2. Aditya Khaitan v. IL and FS Financial Services Ltd., 2023 LiveLaw (SC) 845 : 2023 INSC 867
3. Ajeet Gurjar v. State of Madhya Pradesh, 2023 LiveLaw (SC) 857 : 2023 INSC 875
4. Balvir Singh v. State of Uttarakhand, 2023 LiveLaw (SC) 861 : 2023 INSC 879
5. Bharat Sanchar Nigam Ltd; v. State of Chhattisgarh, 2023 LiveLaw (SC) 849
6. Dhani Ram v. Shiv Singh, 2023 LiveLaw (SC) 862 : 2023 INSC 876
7. GRIDCO Ltd. v. Western Electricity Supply Company, 2023 LiveLaw (SC) 855 : 2023 INSC 872
8. Iveco Magirus Brandschutztechnik Gmbh v. Nirmal Kishore Bhartiya, 2023 LiveLaw (SC) 860 : 2023 INSC 880
9. Karnataka State Electronics Development Corporation Ltd. v Kumaon Entertainment and Hospitalities Pvt. Ltd., 2023 LiveLaw (SC) 863 : 2023 INSC 871
10. Md Imran Ahmad v. Union of India, 2023 LiveLaw (SC) 854
11. Mehta Jewellers v. National Insurance Company Ltd., 2023 LiveLaw (SC) 859
12. N.S. Balaji v. Debts Recovery Tribunal, 2023 LiveLaw (SC) 853
13. Pankaj Bansal v. Union of India, 2023 LiveLaw (SC) 844 : 2023 INSC 866
14. Ranjan Kumar Chadha v. State of Himachal Pradesh, 2023 LiveLaw (SC) 856 : 2023 INSC 878
15. Sanjana Kumari v. Vijay Kumar, 2023 LiveLaw (SC) 848
16. Sanjiv Kumar Rajendrabhai Bhatt v. State of Gujarat, 2023 LiveLaw (SC) 852
17. South Eastern Coalfields Ltd v. State of M.P., 2023 LiveLaw (SC) 851 : 2023 INSC 865
18. State Bank of India v. P. Zandenga, 2023 LiveLaw (SC) 850
19. Sunil Kumar v. Lala Saurabh Verma, 2023 LiveLaw (SC) 858
20. Union Bank of India v. Rajat Infrastructure Pvt. Ltd., 2023 LiveLaw (SC) 846 : 2023 INSC 869