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Complete Supreme Court Yearly...

Complete Supreme Court Yearly Digest Part-6

LIVELAW NEWS NETWORK

17 Feb 2023 7:50 PM IST

Electricity Act, 2003

Electricity Act, 2003 - The Appropriate State Commissions possess the power to determine and regulate tariff. The Electricity Act 2003 seeks to distance the State Governments from the determination and regulation of tariff, placing such power completely within the ambit of the Appropriate Commissions - States have sufficient flexibility to regulate the intra-state transmission systems. (Para 128) TATA Power Company Limited Transmission v. Maharashtra Electricity Regulatory Commission, 2022 LiveLaw (SC) 987

Section 2(8) - “Captive generating plant”

Electricity Act, 2003; Section 2(8), 2(49), 9, 42 - Even an association of corporate bodies can establish a captive power plant. The only requirement would be that the said plant must be established primarily for their own use. (Para 16) Chhattisgarh State Power Distribution Company Ltd. v. Chhattisgarh State Electricity Regulatory Commission, 2022 LiveLaw (SC) 478 : AIR 2022 SC 2904

Section 9 - Captive Generation

Electricity Act, 2003; Section 9 - National Electricity Policy, 2005 - The provision with respect to establishing captive power plant has been made with a view to not only securing reliable, quality and cost effective power but also to facilitate creation of employment opportunities through speedy and efficient growth of industry - A liberal provision has been made in Section 9 of the said Act so as to promote establishment of captive power plants. (Para 21-23) Chhattisgarh State Power Distribution Company Ltd. v. Chhattisgarh State Electricity Regulatory Commission, 2022 LiveLaw (SC) 478 : AIR 2022 SC 2904

Section 64 - Procedure for tariff order

Electricity Act, 2003; Section 64 - It is not permissible to amend the tariff order made under Section 64 during the 'truing up' exercise - 'Truing up' exercise cannot be done to retrospectively change the methodology/principles of tariff determination and reopening the original tariff determination order thereby setting the tariff determination process to a naught at 'trueup' stage - A tariff order is quasi - judicial in nature which becomes final and binding on the parties unless it is amended or revoked under Section 64(6) or set aside by the Appellate Authority - At at the stage of 'truing up', the DERC cannot change the rules/methodology used in the initial tariff determination by changing the basic principles, premises and issues involved in the initial projection of ARR. (Para 51-54) BSES Rajdhani Power Ltd. v. Delhi Electricity Regulatory Commission, 2022 LiveLaw (SC) 857 : 2022 (15) SCALE 588

Section 61 - Tariff Regulations

Electricity Act, 2003; Sections 61 - 63 - Electricity Act do not prescribe one dominant method to determine tariff. Section 63 operates after the bidding process has been conducted. Where the tariff has already been determined through bidding, the Appropriate Commission has to adopt such tariff that has been determined. The Appropriate Commission cannot negate such tariff determined through bidding by using its powers under Section 62. The tariff determined through the bidding process may not be adopted by the Appropriate Commission only if the bidding process was not transparent (undertaking a substantive review) or the procedure prescribed by the Central Government guidelines under Section 63 was not followed (undertaking a procedural review)- Sections 62 and 63 stipulate the modalities of tariff determination. The non-obstante clause in Section 63 cannot be interpreted to mean that Section 63 would take precedence over Section 62 at the stage of choosing the modality to determine tariff. The criteria or guidelines for the determination of the modality of tariff determination ought to be notified by the Appropriate State Commission either through regulations under Section 181 of the Act or guidelines under Section 61 of the Act. (Para 128) TATA Power Company Limited Transmission v. Maharashtra Electricity Regulatory Commission, 2022 LiveLaw (SC) 987

Section 86 - Functions of State Commission

Electricity Act, 2003; Section 86(1)(a) - MERC while exercising its general regulatory powers under Section 86(1)(a) shall be guided by the NTP 2016, which shall be a material consideration. Accordingly, while NTP 2016 requires intra-state transmission projects above the threshold limit to be allotted through TBCB route, this constitutes a material consideration to be taken into account. (Para 128) TATA Power Company Limited Transmission v. Maharashtra Electricity Regulatory Commission, 2022 LiveLaw (SC) 987

Section 126 - Assessment

Electricity Act, 2013; Section 126 - Electricity Supply Code, 2014 (Kerala); Regulation 153(15) - Regulation 153(15) of the Code 2014 is declared to be invalid being inconsistent with the provision of Section 126. (Para 82, 89) Kerala State Electricity Board v. Thomas Joseph @ Thomas M.J., 2022 LiveLaw (SC) 1034

Electricity Act, 2013; Section 126(6) - Consumption of electricity in excess of the connected load/contracted load would amount to 'unauthorised use of electricity' under explanation (b) to Section 126(6). (Para 54-58) Kerala State Electricity Board v. Thomas Joseph @ Thomas M.J., 2022 LiveLaw (SC) 1034

Section 125 - Appeal to Supreme Court

Electricity Act, 2003; Section 125 - For determining whether a case involves substantial question of law, the test is not merely the importance of the question, but its importance to the case itself necessitating the decision of the question. The appropriate test for determining whether the question of law raised in the case is substantial would be to see whether it directly and substantially affects the rights of the parties. If it is established that the decision is contrary to law or the decision has failed to determine some material issue of law or if there is substantial error or defect in the decision of the case on merits, the court can interfere with the conclusion of the lower court or tribunal. The stakes involved in the case are immaterial as long as the impact or effect of the question of law has a bearing on the lis between the parties - In a second appeal, the appellant is entitled to point out that the order impugned is bad in law because it is de hors the pleadings, or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against the provision of law or the decision is one which no Judge acting judicially could reasonably have reached. Once the appellate court is satisfied, after hearing the appeal, that the appeal involves a substantial question of law, it has to formulate the question and direct issuance of notice to the respondent. (Para 30-31) BSES Rajdhani Power Ltd. v. Delhi Electricity Regulatory Commission, 2022 LiveLaw (SC) 857 : 2022 (15) SCALE 588

Electricity Act, 2003; Section 125 - Findings of fact by the Regulatory Commission and the Tribunal cannot be reopened on appeal under Section 125 - Appeal shall lie only if the court is satisfied that the case involves a substantial question of law. (Para 106.2) TATA Power Company Limited Transmission v. Maharashtra Electricity Regulatory Commission, 2022 LiveLaw (SC) 987

Electricity Act, 2003; Section 125 - The existence of a 'substantial question of law' arising from the judgment of the APTEL is sine qua non for exercise of jurisdiction by this Court under Section 125 of the 2003 Act. (Para 27) BSES Rajdhani Power Ltd. v. Delhi Electricity Regulatory Commission, 2022 LiveLaw (SC) 857 : 2022 (15) SCALE 588

Section 181 - Powers of State Commissions to make regulations

Electricity Act, 2003; Section 181 - State Regulatory Commissions to frame Regulations under Section 181 of the Act on the terms and conditions for determination of tariff within three months from the date of this judgment. While framing these guidelines on determination of tariff, the Appropriate Commission shall be guided by the principles prescribed in Section 61, which also includes the NEP and NTP. Where the Appropriate Commission(s) has already framed regulations, they shall be amended to include provisions on the criteria for choosing the modalities to determine the tariff, in case they have not been already included. The Commissions while being guided by the principles contained in Section 61 shall effectuate a balance that would create a sustainable model of electricity regulation in the States. The Regulatory Commission shall curate to the specific needs of the State while framing these regulations. (Para 131) TATA Power Company Limited Transmission v. Maharashtra Electricity Regulatory Commission, 2022 LiveLaw (SC) 987

Electricity Reforms Act, 1999 (Karnataka)

Electricity Reforms Act, 1999 (Karnataka); Section 27(2) - The proviso when it uses the words 'contracts concluded', does not use the words 'contracts concluded as regards tariffs' . A contract of the nature cannot be said to consist only of a rate and the term or even the quantum included. In a contract of this nature, there are obviously variou other aspects about which the parties must be ad idem. The rate, the term and quantum are integrally interconnected with other terms. There cannot be concluded contract without parties being ad idem about those terms. (Para 79) Karnataka Power Transmission Corporation Ltd. v. JSW Energy Ltd., 2022 LiveLaw (SC) 981

Electricity Reforms Act, 1999 (Karnataka); Section 41 - A Right of Appeal is a creature of a Statute. The right can be qualified or conditioned. The ambit of the appellate power is to be discerned from the terms of the Statute. A 'question of law' is not the same as a 'substantial question of law'. However, when the Statute insists on a 'question of law' to maintain an appeal, the Appellate Body stands constrained to that extent. (Para 88) Karnataka Power Transmission Corporation Ltd. v. JSW Energy Ltd., 2022 LiveLaw (SC) 981

Electricity Regulatory Commission (Karnataka) - The Commission is an Expert Body. Interference with its findings cannot be sustained, to begin with, if it is bereft of reasons. Findings of such a body must receive due deference. Perversity in the sense of findings, which are wholly without basis or material or which no person with the professed skills would arrive at, may merit interference. A finding, which ill squares with a clear statutory injunction, would leave the door ajar for overturning the finding. (Para 89) Karnataka Power Transmission Corporation Ltd. v. JSW Energy Ltd., 2022 LiveLaw (SC) 981

Electricity Duty Act, 2016 (Maharashtra)

Electricity Duty Act, 2016 (Maharashtra); Section 3(2) - Charitable Education Institutions are not entitled to the exemption from payment of electricity duty post 08.08.2016 - Exemption provision need to be interpreted literally and when the language used in exemption provision is simple, clear and unambiguous, the same has to be applied rigorously, strictly and literally. (Para 11.4) State of Maharashtra v. Vile Parle Kelvani Mandal, 2022 LiveLaw (SC) 32 : AIR 2022 SC 446 : (2022) 2 SCC 725

Employees Compensation Act, 1923

Employee's Compensation Act, 1923 - Appeal against High Court order which directed that the interest @ 12% p.a. shall become payable from the period after expiry of one month from the date of the Commissioner's order - Allowed - While directing the employer to pay the interest from the date of the order passed by the Commissioner, the High Court has not at all considered Section 4A(3)(a) and has considered Section 4A(3)(b) only, which is the penalty provision - Claimants shall be entitled to the interest @ 12% p.a. on the amount of compensation as awarded by the Commissioner from the date of the incident. Shobha v. Chairman, 2022 LiveLaw (SC) 271 : AIR 2022 SC 1410

Employees Compensation Act, 1923 - In the absence of any clear demarcation of duties of a Helper or a Cleaner and in view of the fact that Helper and Cleaner are interchangeably used, therefore, declining claim for the reason that deceased was engaged as a helper and not Cleaner is wholly unjustified. (Para 8) Mangilal Vishnoi v. National Insurance, 2022 LiveLaw (SC) 56

Employee's Compensation Act, 1923 - The liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner. (Para 4.1) Shobha v. Chairman, 2022 LiveLaw (SC) 271 : AIR 2022 SC 1410

Employees Pension Scheme

Employees Pension Amendment Scheme - The amendment was made in exercise of power otherwise vested in the authority making such amendment and the amendments were made on the basis of certain relevant materials and not whimsically. (Para 32) Employees Provident Fund Organization v. B. Sunil Kumar, 2022 LiveLaw (SC) 912 : AIR 2022 SC 5634

Employees Provident Fund Act - Employees Pension Scheme - Supreme Court holds Employees Pension (Amendment) Scheme 2014 as legal and valid- Extends cut-off date to exercise option by four months- Holds condition for additional contribution by employees as ultra vires the EPF Act. Employees Provident Fund Organization v. B. Sunil Kumar, 2022 LiveLaw (SC) 912 : AIR 2022 SC 5634

Employees Provident Fund and Miscellaneous Provisions Act, 1952

Employees Provident Fund and Miscellaneous Provisions Act, 1952 - Section 14B - Any default or delay in the payment of EPF contribution by the employer under the Act is a sine qua non for imposition of levy of damages under Section 14B - Mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities. (Para 17) Horticulture Experiment Station Gonikoppal Coorg v. Regional Provident Fund Organization, 2022 LiveLaw (SC) 202 : (2022) 4 SCC 516

Employees State Insurance Act, 1948

Employee State Insurance Act, 1948; Section 2(22) - "Conveyance allowance" is equivalent to the traveling allowance and therefore any conveyance allowance/traveling allowance is excluded from the definition of "wages". Talema Electronic v. ESI Corporation, 2022 LiveLaw (SC) 422

Employees State Insurance Act, 1948 - Board of Control for Cricket in India [BCCI] can be said to be a "shop" for the purposes of attracting the provisions of Employees State Insurance Act - The activities of the BCCI can be said to be systematic commercial activities providing entertainment by selling tickets etc. (Para 9-12) Board of Control for Cricket in India v. Regional Director Employees' State Insurance Corporation, 2022 LiveLaw (SC) 725

Employees State Insurance Act, 1948; Section 39(5)(a) - Neither the Authority nor the Court have any authority to either waive the interest and/or reduce the interest and/or the period during which the interest is payable - The interest leviable/payable is a statutory liability to pay the interest -The liability to pay the interest is from the date on which such contribution has become due and till the date of its actual payment. Regional Director / Recovery Officer v. Nitinbhai Vallabhai Panchasara, 2022 LiveLaw (SC) 983

Employees State Insurance Act, 1948; Section 45-AA - Once the statute has fixed the condition of pre-deposit before filing an appeal, such condition is required to be satisfied - Giving appellate authority a discretion to waive of the amount determined, is clearly not sustainable. (Para 8) Employees State Insurance Health Care v. Maruti Suzuki, 2022 LiveLaw (SC) 453

Employment of Local Candidates Act, 2020 (Haryana State)

Employment of Local Candidates Act, 2020 (Haryana State) - Constitutional Validity - Interim order passed by Punjab & Haryana High Court staying the implementation of the Act set aside - Stay of legislation can only be when the Court is of the opinion that it is manifestly unjust or glaringly unconstitutional - Sufficient reasons should be given for staying legislations. State of Haryana v. Faridabad Industries Association, 2022 LiveLaw (SC) 178

Endosulfan Tragedy

Endosulfan Tragedy - Contempt plea preferred by victims alleging failure on the part of State of Kerala to disburse 5 lakhs compensation - State's Chief Secretary to hold monthly meetings to undertake the process of identification of the victims of endosulfan, ensuring disbursement of compensation of Rs 5 lakhs and taking steps to ensure provision of medical facilities. Baiju K.G. v. Dr. V.P. Joy, 2022 LiveLaw (SC) 517 : 2022 (8) SCALE 275

Environment

Environment - The conservation of forest plays a vital role in maintaining the ecology. It acts as processors of the water cycle and soil and also as providers of livelihoods. As such, preservation and sustainable management of forests deserve to be given due importance in formulation of policies by the State. (Para 101) State of Uttar Pradesh v. Uday Education and Welfare Trust, 2022 LiveLaw (SC) 868

Environment (Protection) Act, 1986

Environment (Protection) Act, 1986; Section 3 - Guidelines issued by the Union Ministry on February 9 2011 for Ecologically Sensitive Zones near protected forests held to be reasonable - Further directions issued in relation to ESZ -No new permanent structure shall be permitted to come up for whatsoever purpose within the ESZ - Mining within the national parks and wildlife sanctuaries shall not be permitted. (Para 44) In Re : TN Godavarman Thirumalpad v. Union of India, 2022 LiveLaw (SC) 540 : 2022 (9) SCALE 254

Environment (Protection) Act, 1986 - Environmental Impact Assessment Notification 2006 - Ex post facto Environmental Clearance - EP Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible - Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operation. (Para 46-50) D. Swamy v. Karnataka State Pollution Control Board, 2022 LiveLaw (SC) 791

Environment Protection Act, 1986 - Appeal by Pahwa Plastics Pvt. Ltd against an NGT order holding that its manufacturing units, which did not have prior Environmental Clearance (EC) could not be allowed to operate - Allowed - The question in this case is, whether a unit contributing to the economy of the country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from the concerned statutory authorities, and has applied for Ex post facto EC, should be closed down for the technical irregularity of want of prior environmental clearance, pending the issuance of EC, even though it may not cause pollution and/or may be found to comply with the required norms. The answer to the aforesaid question has to be in the negative, more so when the HSPCB was itself under the misconception that no environment clearance was required for the units in question. Pahwa Plastics Pvt. Ltd. v. Dastak NGO, 2022 LiveLaw (SC) 318 : 2022 (5) SCALE 353

Environment Protection Act, 1986 - Environmental Clearance - Need to comply with the requirement to obtain EC is non-negotiable. A unit can be set up or allowed to expand subject to compliance of the requisite environmental norms. EC is granted on condition of the suitability of the site to set up the unit, from the environmental angle, and also existence of necessary infrastructural facilities and equipment for compliance of environmental norms. To protect future generations and to ensure sustainable development, it is imperative that pollution laws be strictly enforced. Under no circumstances can industries, which pollute, be allowed to operate unchecked and degrade the environment. (Para 62) Pahwa Plastics Pvt. Ltd. v. Dastak NGO, 2022 LiveLaw (SC) 318 : 2022 (5) SCALE 353

Environment Protection Act, 1986 - Ex post facto Environmental Clearance - The 1986 Act does not prohibit Ex post facto Environmental Clearance - It should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of Ex post facto approval outweigh the consequences of regularization of operations by grant of Ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, Ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. The deviant industry may be penalised by an imposition of heavy penalty on the principle of 'polluter pays' and the cost of restoration of environment may be recovered from it - An establishment contributing to the economy of the country and providing livelihood ought not to be closed down only on the ground of the technical irregularity of not obtaining prior Environmental Clearance irrespective of whether or not the unit actually causes pollution. (Para 63, 65,) Pahwa Plastics Pvt. Ltd. v. Dastak NGO, 2022 LiveLaw (SC) 318 : 2022 (5) SCALE 353

Environmental Law

Environmental Law - Adherence to the principle of sustainable development is a constitutional requirement- Precautionary Principle essential feature of the principle of 'Sustainable Development' - In case of a doubt, protection of environment would have precedence over the economic interest - Precautionary principle requires anticipatory action to be taken to prevent harm and that harm can be prevented even on a reasonable suspicion. (Para 15-18) T.N. Godavarman Thirumulpad v. Union of India, 2022 LiveLaw (SC) 467 : (2022) 9 SCC 306

Environmental Law - Appeal against NGT order directing that mining activity shall not be permitted within and in the vicinity of Simplipal - Hadagarh - Kuldiha – Simplipal elephant corridor - Disposed of - Implement the Comprehensive Wildlife Management Plan as suggested by the Standing Committee of NBWL before permitting any mining activity in the eco-sensitive zone - Complete the process of declaration of the traditional elephant corridor as conservation reserve expeditiously. The mining operations of 97 quarries shall be permitted only thereafter. Binay Kumar Dalei v. State of Odisha, 2022 LiveLaw (SC) 233 : AIR 2022 SC 1191 : (2022) 5 SCC 33

Environmental Law - Public Trust Doctrine - Public Trust Doctrine is part of the law of land - The role of the State cannot be confined to that of a facilitator or generator of economic activities for immediate upliftment of the fortunes of the State. The State also has to act as a trustee for the benefit of the general public in relation to the natural resources so that sustainable development can be achieved in the long term. Such role of the State is more relevant today, than, possibly, at any point of time in history with the threat of climate catastrophe resulting from global warming looming large. (Para 28) In Re : TN Godavarman Thirumalpad v. Union of India, 2022 LiveLaw (SC) 540 : 2022 (9) SCALE 254

Environmental Law - Supreme Court revoked the approval granted by the Standing Committee of National Board for Wildlife (NBWL) for doubling of existing railway line from Castlerock (Karnataka) to Kulem (Goa) - Assessment of the impact which the project would have on the environment, especially in the protected area and wildlife sanctuary taking into account all the major factors such as the impact on the habitat, species, climate, temperature etc. caused due to felling of trees (not only for the laying of railway tracks but also for the secondary works such as setting up machinery, disposal of waste, and putting in place various mitigation measures etc.), movement of trains, human-wildlife interactions would have to be strictly undertaken before the project is considered by the NBWL. T.N. Godavarman Thirumulpad v. Union of India, 2022 LiveLaw (SC) 467 : (2022) 9 SCC 306

Environmental Law - Sustainable Development - Need to strike a balance between the development and the environmental issues - Though development is necessary for economical progress of the nation, it is equally necessary to safeguard the environment so as to preserve pollution free environment and ecology for the future generations to come. (Para 16) State of Andhra Pradesh v. Raghu Rama Krishna Raju Kanumuru (MP), 2022 LiveLaw (SC) 544 : AIR 2022 SC 2850

Estoppel

Estoppel - There can be no estoppel against a statute - Plea of promissory estoppel would stand negated when the mandate of a statute is followed. (Para 25-29) State of West Bengal v. Gitashree Dutta (Dey), 2022 LiveLaw (SC) 527

Estoppel - There can be no estoppel against a statute or regulations having a statutory effect. (Para 23) Employees State Insurance Co. v. Union of India, 2022 LiveLaw (SC) 78 : AIR 2022 SC 1017

Evidence Act, 1872

Evidence Act, 1872 - A mere non -examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it. (Para 31) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Evidence Act, 1872 - Evidence Act is an “Adjective Law” highlighting and aiding substantive law - It is neither wholly procedural nor substantive, though trappings of both could be felt. (Para 12) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Evidence Act, 1872 - The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it. (Para 17) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Evidence Act, 1872 - When the court is convinced with the quality of the evidence produced, notwithstanding the classification, it becomes the best evidence. Such testimony being natural, adding to the degree of probability, the court has to make reliance upon it in proving a fact. (Para 29) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Evidence Act, 1872 - When the court wants to consider the second part of the definition clause instead of believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case. (Para 18) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Evidence Act, 1872 - When we deal with a case of circumstantial evidence, as aforesaid, motive assumes significance. Though, the motive may pale into insignificance in a case involving eyewitnesses, it may not be so when an accused is implicated based upon the circumstantial evidence. (Para 13) Ravi Sharma v Govt. of NCT of Delhi, 2022 LiveLaw (SC) 615 : AIR 2022 SC 4810 : (2022) 8 SCC 536

Evidence Act, 1872 - While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take note of the contradictions available in other matters. (Para 20) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Dying Declaration

Evidence Act 1872 - Dying Declaration - When can be relied upon - Conditions - It could thus be seen that the Court is required to examine as to whether the dying declaration is true and reliable; as to whether it has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration; as to whether it has been made under any tutoring/duress/prompting. The dying declaration can be the sole basis for recording conviction and if it is found reliable and trustworthy, no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, the dying declaration recorded by the higher officer like a Magistrate can be relied upon. However, this is with the condition that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration has not been found to be made voluntarily and is not supported by any other evidence, the Court is required to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance. (Para 9) Makhan Singh v. State of Haryana, 2022 LiveLaw (SC) 677 : AIR 2022 SC 3793

“Matters”

Evidence Act, 1872 - “Matters” - Matters are necessary, concomitant material factors to prove a fact. All evidence would be “matters” but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also add strength to the evidence giving adequate ammunition in the Court’s sojourn in deciphering the truth. Thus, the definition of “matters” is exhaustive, and therefore, much wider than that of “evidence”. However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact - Matters do give more discretion and flexibility to the court in deciding the existence of a fact. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Chance Witness

Evidence Act, 1872 - Chance Witness - A chance witness is the one who happens to be at the place of occurrence of an offence by chance, and therefore, not as a matter of course. In other words, he is not expected to be in the said place. A person walking on a street witnessing the commission of an offence can be a chance witness. Merely because a witness happens to see an occurrence by chance, his testimony cannot be eschewed though a little more scrutiny may be required at times. This again is an aspect which is to be looked into in a given case by the court. (Para 26) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Classification of Evidence

Evidence Act, 1872 - Classification of Evidence - Circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc. Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Definition of “Proved”

Evidence Act, 1872 - Definition of “Proved” - The definition of the word “proved” though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the “matters before it”. The importance is to the degree of probability in proving a fact through the consideration of the matters before the court. What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical influence. (Para 13) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Extra Judicial Confession

Extrajudicial confession - A weak piece of evidence - Unless such a confession is found to be voluntary, trustworthy and reliable, the conviction solely on the basis of the same, without corroboration, would not be justified. Union of India v. Major R. Metri No. 08585N, 2022 LiveLaw (SC) 343 : AIR 2022 SC 1661 : (2022) 6 SCC 525

Hostile Witness

Evidence Act, 1872 - Hostile Witness - Testimony of a witness turning to depose in favour of the opposite party -A witness may depose in favour of a party in whose favour it is meant to be giving through his chief examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief examination could be termed as evidence. Such evidence would become complete after the cross examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion. (Para 21) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Ocular Evidence

Evidence Act, 1872 - Ocular Evidence - Principles for appreciation of ocular evidence in a criminal case - In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. (Para 27-28) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Related Witness

Evidence Act, 1872 - Related Witness - A related witness cannot be termed as an interested witness per se. One has to see the place of occurrence along with other circumstances. A related witness can also be a natural witness. If an offence is committed within the precincts of the deceased, the presence of his family members cannot be ruled out, as they assume the position of natural witnesses. When their evidence is clear, cogent and withstood the rigor of cross examination, it becomes sterling, not requiring further corroboration. A related witness would become an interested witness, only when he is desirous of implicating the accused in rendering a conviction, on purpose. (Para 28) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Section 3 - Interpretation-clause.

Evidence Act, 1872 - Section 3 - Definition of “Evidence” - Factor or material, lending a degree of probability through a logical inference to the existence of a fact. (Para 12) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Section 8 - Motive, preparation and previous or subsequent conduct.

Evidence Act, 1872; Section 8 - Although the conduct of an accused may be a relevant fact under Section 8 of the Evidence Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder. (Para 74) Ramanand @ Nandlal Bharti v. State of Uttar Pradesh, 2022 LiveLaw (SC) 843 : AIR 2022 SC 5273

Evidence Act, 1872; Section 8 - Doctrine of Res Gestae - The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" that it becomes relevant by itself. A conduct of the accused after the incident may become admissible under Section 6 of the Evidence Act, though not in issue, if it is so connected with the fact in issue. (Para 36) Veerendra v. State of Madhya Pradesh, 2022 LiveLaw (SC) 480 : AIR 2022 SC 2396 : (2022) 8 SCC 668

Evidence Act, 1872; Section 8 - The conduct of the accused alone, though may be relevant under Section 8 of the Act, cannot form the basis of conviction. (Para 50) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Evidence Act, 1872; Section 8 - The conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction. (Para 89) Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887 : AIR 2022 SC 5110

Evidence Act, 1872; Section 8, 27 - Even while discarding the evidence in the form of discovery panchnama the conduct would be relevant under Section 8 of the Act. The evidence of discovery would be admissible as conduct under Section 8 of the Act quite apart from the admissibility of the disclosure statement under Section 27. (Para 48) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Section 9 - Facts necessary to explain or introduce relevant facts.

Evidence Act, 1872; Section 9 - The evidence of a TIP is admissible under Section 9 of the Indian Evidence Act. However, it is not a substantive piece of evidence. Instead, it is used to corroborate the evidence given by witnesses before a court of law at the time of trial. Therefore, TIPs, even if held, cannot be considered in all the cases as trustworthy evidence on which the conviction of an accused can be sustained. (Para 26) Gireesan Nair v. State of Kerala, 2022 LiveLaw (SC) 955

Section 25 - Confession to police-officer not to be proved.

Evidence Act, 1872; Section 25 - Code of Criminal Procedure, 1973; Section 161 - Both the Trial Court and the Appellate Court went completely wrong in placing reliance on the voluntary statements of the accused and their videography statements - A confessional statement given by an accused before a Police officer is inadmissible as evidence - Statement given by an accused to police under Section 161 of CrPC is not admissible as evidence. (Para 13) Munikrishna @ Krishna v. State by UIsoor PS, 2022 LiveLaw (SC) 812

Evidence Act, 1872; Section 25, 27, 8 - No part of a First Information Report lodged by an accused with the police as an implicatory statement can be admitted into evidence - However, the statement can be admitted to identify the accused as the maker of the report - Further, that part of the information in the statement, which is distinctly related to the 'fact' discovered in consequence of such information, can also be admitted into evidence under Section 27 of the Evidence Act, provided that the discovery of the fact must be in relation to a material object - The conduct of the accused is relevant and admissible under Section 8 of the Evidence Act. (Para 5) Dauvaram Nirmalkar v. State of Chhattisgarh, 2022 LiveLaw (SC) 650 : AIR 2022 SC 3620

Section 27 - How much of information received from accused, may be proved.

Evidence Act 1872; Section 27 - Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense. Thus, it incorporates the theory of "confirmation by subsequent facts" facilitating a link to the chain of events. It is for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused. Therefore, Section 27 is an exception to Sections 24 to 26 meant for a specific purpose and thus be construed as a proviso. (Para 31) Jafarudheen v. State of Kerala, 2022 LiveLaw (SC) 403: AIR 2022 SC 3627 : (2022) 8 SCC 440

Evidence Act 1872; Section 27 - The onus is on the prosecution to prove the fact discovered from the information obtained from the accused. This is also for the reason that the information has been obtained while the accused is still in the custody of the police. Having understood the aforesaid object behind the provision, any recovery under Section 27 will have to satisfy the Court's conscience. One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means. The Court will have to be conscious of the witness's credibility and the other evidence produced when dealing with a recovery under Section 27 of the Evidence Act. (Para 32) Jafarudheen v. State of Kerala, 2022 LiveLaw (SC) 403: AIR 2022 SC 3627 : (2022) 8 SCC 440

Evidence Act, 1872; Section 27 - Accused's statement recorded on a DVD and played in Court - Such a statement is in the nature of a confession to a Police Officer and is completely hit by the principles of Evidence Act. If at all the accused were desirous of making confessions, the Investigating Machinery could have facilitated recording of confession by producing them before a Magistrate for appropriate action in terms of Section 164 of the Code. Any departure from that course is not acceptable and cannot be recognized and taken on record as evidence. (Para 20) Venkatesh @ Chandra v. State of Karnataka, 2022 LiveLaw (SC) 387

Evidence Act, 1872; Section 27 - Conditions necessary for the applicability of Section 27 - Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. (Para 64-68) Ramanand @ Nandlal Bharti v. State of Uttar Pradesh, 2022 LiveLaw (SC) 843 : AIR 2022 SC 5273

Evidence Act, 1872; Section 27 - How the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 - If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. (Para 53) Ramanand @ Nandlal Bharti v. State of Uttar Pradesh, 2022 LiveLaw (SC) 843 : AIR 2022 SC 5273

Evidence Act, 1872; Section 27 - How the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 - Conditions necessary for the applicability of Section 27 - Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. (Para 78-87) Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887 : AIR 2022 SC 5110

Evidence Act, 1872; Section 27 - Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. (Para 45-46) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Evidence Act, 1872; Section 27 - Tendency on part of the Prosecuting Agency in getting the entire statement recorded rather than only that part of the statement which leads to the discovery of facts - In the process, a confession of an accused which is otherwise hit by the principles of Evidence Act finds its place on record. Such kind of statements may have a direct tendency to influence and prejudice the mind of the Court. This practice must immediately be stopped. (Para 19) Venkatesh @ Chandra v. State of Karnataka, 2022 LiveLaw (SC) 387

Section 30 - Consideration of proved confession affecting person making it and others jointly under trial for same offence

Evidence Act, 1872; Section 30 - Confession of a coaccused could only be considered but could not be relied on as substantive evidence - Fine distinction between an extra judicial confession being a corroborative piece of evidence and a confession recorded under Section 15 of the TADA Act being treated as a substantive piece of evidence. (Para 66 -68) Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887 : AIR 2022 SC 5110

Evidence Act, 1872; Section 30 - Extra judicial confession is a weak kind of evidence and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra judicial confession - The extra judicial confession made by the co-accused could be admitted in evidence only as a corroborative piece of evidence. In absence of any substantive evidence against the accused, the extra judicial confession allegedly made by the co-accused loses its significance and there cannot be any conviction based on such extra judicial confession of the co-accused. (Para 11-12) Chandrapal v. State of Chhattisgarh, 2022 LiveLaw (SC) 529 : AIR 2022 SC 2542

Section 32 - Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.

Evidence Act 1872; Section 32 - Dying Declaration - Case of two dying declarations, both contradictory, both recorded by judicial magistrates- Court relies on the dying declaration recorded after medical examination. (Para 16,17) Makhan Singh v. State of Haryana, 2022 LiveLaw (SC) 677 : AIR 2022 SC 3793

Evidence Act, 1872 - Section 32 - Dying Declaration - Principles as to the circumstances under which a dying declaration may be accepted, without corroboration: (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. State of U.P. v. Veerpal, 2022 LiveLaw (SC) 111 : (2022) 4 SCC 741

Evidence Act, 1872 - Section 32 - Dying Declaration - There can be a conviction solely based upon the dying declaration without corroboration - If the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration. State of U.P. v. Veerpal, 2022 LiveLaw (SC) 111 : (2022) 4 SCC 741

Evidence Act, 1872 ; Section 27 - Conditions necessary for the applicability of Section 27 of the Act - (1) Discovery of fact in consequence of an information received from accused; (2) Discovery of such fact to be deposed to; (3) The accused must be in police custody when he gave informations and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Two conditions for application – (1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered. (Para 42) Shahaja @ Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, 2022 LiveLaw (SC) 596

Evidence Act, 1872; Section 32 - Dying Declaration - Although a dying declaration ought to ideally be recorded by a Magistrate if possible, it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone. The issue of whether a dying declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case - The fact that the dying declaration is not in the form of questions and answers does not impact either its admissibility or its probative value - There is no rule mandating the corroboration of the dying declaration through medical or other evidence, when the dying declaration is not otherwise suspicious. (Para 41-44, 50-52) State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, 2022 LiveLaw (SC) 890 : AIR 2022 SC 5393

Evidence Act, 1872; Section 32 - Dying Declaration - There is no absolute proposition of law that in a case when at the time when the dying declaration was recorded, there was no emergency and/or any danger to the life, the dying declaration should be discarded as a whole (Para 6) - Merely because the weapon used is not recovered cannot be a ground not to rely upon the dying declaration. (Para 9) State of Uttar Pradesh vs Subhash @ Pappu, 2022 LiveLaw (SC) 336 : AIR 2022 SC 1651 : (2022) 6 SCC 508

Evidence Act, 1872; Section 32(1) - Penal Code, 1860; Sections 498A, 304B, 302, 306 - Dying Declaration - In some circumstances, the evidence of a deceased wife with respect to cruelty could be admissible in a trial for a charge under Section 498A of the IPC under Section 32(1) of the Evidence Act , subject to meeting certain necessary preconditions (1) That her cause of death must come into question in the matter - For instance, matters where along with the charge under Section 498A of the IPC, the prosecution has also charged the accused under Sections 302, 306 or 304B of the IPC - As long as the cause of her death has come into question, whether the charge relating to death is proved or not is immaterial with respect to admissibility. (2) Prosecution will have to show that the evidence that is sought to be admitted with respect to Section 498A of the IPC must also relate to the circumstances of the transaction of the death. How far back the evidence can be, and how connected the evidence is to the cause of death of the deceased would necessarily depend on the facts and circumstances of each case. No specific straitjacket formula or rule can be given with respect to this. Surendran v. State of Kerala, 2022 LiveLaw (SC) 482 : AIR 2022 SC 2322

Evidence Act, 1872; Section 32(1) - Test for Admissibility - The cause of death must come into question in that case, regardless of the nature of the proceeding, and that the purpose for which such evidence is being sought to be admitted should be a part of the 'circumstances of the transaction' relating to the death - The test is not that the evidence to be admitted should directly relate to a charge pertaining to the death of the individual, or that the charge relating to death could not be proved. (Para 17) Surendran v. State of Kerala, 2022 LiveLaw (SC) 482 : AIR 2022 SC 2322

Section 33 - Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.

Evidence Act, 1872 - Section 33 - Section 33 is an exception to the general rule which mandates adequate facility for cross examining a witness. However, in a case where a witness after the completion of the chief examination and while subjecting him to a substantial and rigorous cross examination, did not choose to get into the witness box on purpose, it is for the court to utilize the said evidence appropriately. The issues over which the evidence is completed could be treated as such by the court and then proceed. Resultantly, the issues for which the cross examination is not over would make the entire examination as inadmissible. Ultimately, it is for the court to decide the aforesaid aspect. (Para 24) Rajesh Yadav v. State of U.P., 2022 LiveLaw (SC) 137 : 2022 (3) SCALE 135

Section 45 - Opinions of Experts

Evidence Act, 1872; Section 45 - Expert Witness - A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. (Para 29) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631 : AIR 2022 SC 5454

Evidence Act, 1872; Sections 45, 47, 73 - Appeal against Orissa High Court judgment which quashed the order taking cognizance passed by the Sub-Divisional Judicial Magistrate, under Sections 467 and 471 of the Indian Penal Code, on the ground that the opinion of the handwriting expert on the disputed signatures was non-conclusive - Allowed. Manorama Naik v. State of Odisha, 2022 LiveLaw (SC) 297

Evidence Act, 1872; Sections 45, 47, 73 - Opinion of the handwriting expert is not the only way or mode of providing the signature and handwriting of a person - The signatures and handwriting of the person can also be proved under Sections 45, 47 and 73. Manorama Naik v. State of Odisha, 2022 LiveLaw (SC) 297

Section 65B - Admissibility of electronic records

Evidence Act, 1872; Section 65B - The decision in Anvar P.V. vs. P.K. Basheer & Ors. (2014) 10 SCC 473 as clarified in Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal & Ors. (2020) 7 SCC 1 is the law declared on Section 65B of the Evidence Act. (Para 22-24) Mohd. Arif @ Ashfaq v. State (NCT Of Delhi), 2022 LiveLaw (SC) 902

Evidence Act, 1872; Section 65B(4) - Certificate under Section 65B(4) is a mandatory requirement for production of electronic evidence - Oral evidence in the place of such certificate cannot possibly suffice. (Para 20-21) Ravinder Singh @ Kaku v. State of Punjab, 2022 LiveLaw (SC) 461 : AIR 2022 SC 2726 : (2022) 7 SCC 581

Section 106 - Burden of proving fact especially within knowledge

Evidence Act, 1872 - Section 106 - Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of the accused - Burden could not be shifted on the accused by pressing into service the provisions contained in section 106 of the Evidence Act when the prosecution could not prove the basic facts as alleged against the accused. (Para 15 - 16) Satye Singh v. State of Uttarakhand, 2022 LiveLaw (SC) 169 : (2022) 5 SCC 438

Evidence Act, 1872; Section 106 - Last Seen Theory - When 'last seen' evidence is cogent and trustworthy which establishes that the deceased was lastly seen alive in the company of the accused; and is coupled with the evidence of discovery of the dead body of deceased at a far away and lonely place on the information furnished by the accused, the burden is on the accused to explain his whereabouts after he was last seen with the deceased and to show if, and when, the deceased parted with his company as also the reason for his knowledge about the location of the dead body. (Para 31) Pappu v. State of Uttar Pradesh, 2022 LiveLaw (SC) 144 : 2022 (3) SCALE 45

Evidence Act, 1872; Section 106 - Although Section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused. Moreover, in a case based on circumstantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, then such a response in itself becomes an additional link in the chain of events. Sabitri Samantaray v. State of Odisha, 2022 LiveLaw (SC) 503 : AIR 2022 SC 2591

Evidence Act, 1882; Section 106 - Last Seen Together - Once the theory of "last seen together" was established, the accused was expected to offer some explanation as to under which circumstances, he had parted the company of the victim -Section 106 of the Evidence Act does not shift the burden of the prosecution on the accused, nor requires the accused to furnish an explanation with regard to the facts which are especially within his knowledge, nonetheless furnishing or non-furnishing of the explanation by the accused would be a very crucial fact, when the theory of "last seen together" as propounded by the prosecution is proved against him, to know as to how and when the accused parted the company of the victim. (Para 26) Mohd Firoz v. State of Madhya Pradesh, 2022 LiveLaw (SC) 390 : AIR 2022 SC 1967 : (2022) 7 SCC 443

Section 112 - Birth during marriage, conclusive proof of legitimacy.

Evidence Act 1872; Section 112 - DNA test - SC sets aside direction for DNA test of children - notes that children were not parties to the proceedings - the test will have the potential of exposing them to inheritance related complication. Section 112 of the Evidence Act, gives a protective cover to children from allegations of this nature. (Para 7) Inayath Ali & Anr. v. State of Telengana, 2022 LiveLaw (SC) 869

Section 114 - Court may presume existence of certain facts

Evidence Act, 1872; Section 114 - If a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place. (Para 15 -20) Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, 2022 LiveLaw (SC) 549 : AIR 2022 SC 2841

Section 129 - Confidential communications with legal advisers

Evidence Act, 1872; Section 129 - Privilege over legal advise - Legal privilege not applicable to legal opinion used by SEBI to initiate prosecution, as such opinion is part of investigation. (Para 53-55) Reliance Industries Ltd. v. Securities and Exchange Board of India, 2022 LiveLaw (SC) 659 : AIR 2022 SC 3690 : (2022) 10 SCC 181

Section 145 - Cross-examination as to previous statements in writing

Evidence Act, 1872; Sections 145, 157 - Statements recorded under Section 161 Cr.P.C. are inadmissible in evidence and its use is limited for the purposes as provided under Sections 145 and 157 of the Evidence Act - statement recorded under Section 164, Cr.P.C. can also be used only for such purposes. (Para 20) State of Maharashtra v. Dr. Maroti Kashinath Pimpalkar, 2022 LiveLaw (SC) 898 : AIR 2022 SC 5595

Section 154 - Question by party to his own witness

Evidence Act 1872; Section 154 - the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence. (Para 67) Neeraj Dutta v. State (GNCTD), 2022 LiveLaw (SC) 1029

Section 165 - Judge’s power to put questions or order production

Evidence Act, 1872; Section 165 - Section 165 of the Indian Evidence Act confers unbridled powers upon the trial courts to put any question at any stage to the witnesses to elicit the truth. The Judge is not expected to be a passive umpire but issupposed to actively participate in the trial, and to question the witnesses to reach to a correct conclusion. [Para 34] Rahul v. State of Delhi Ministry of Home Affairs, 2022 LiveLaw (SC) 926

EWS reservation

EWS reservation - The reasons for allowing EWS reservation for the current academic year 2021-2022 provided. Neil Aurelio Nunes v. Union of India, 2022 LiveLaw (SC) 73 : (2022) 4 SCC 1

Excise Act, 1910 (U.P.)

Excise Act, 1910 (U.P.) - Section 3 - IMFL destroyed in fire answers to the description of “spirit”, “liquor” and “excisable article” within the meaning of Clauses (8) (11) and (22-a) of Section 3 of the Act of 1910, for being an intoxicating liquor containing alcohol obtained by distillation. (Para 36) State of U.P. v. Mcdowell and Company Ltd., 2022 LiveLaw (SC) 13 : (2022) 6 SCC 223

Exim Policy

Exim Policy - The DGFT/Union is free to change the Exim Policy and consider from time to time on which items there shall be an incentive and on which items there shall not be any incentive. To grant the benefit of an incentive is a policy decision which may be varied and/or even withdrawn. No exporter can claim the incentive as a matter of right. Under the circumstances, the doctrine of promissory estoppel shall not be applicable to such a policy decision with respect to incentive. (Para 7) Chowgule & Company Ltd. v. Assistant Director General of Foreign Trade, 2022 LiveLaw (SC) 919 : AIR 2022 SC 5529

Extradition Act, 1962

Extradition Act, 1962 - Supreme Court holds that Union Government is bound to release Bombay Blast case convict Abu Salem by granting remission of him after he completes 25 years of sentence from the date on which he was detained for extradition to India (12.10.2005) as per the sovereign assurance given to Portugal. Abu Salem v. State of Maharashtra, 2022 LiveLaw (SC) 578

Extradition Act, 1962 - The separation of Judicial and Executive powers and the scheme of the Indian Constitution cannot bind the Indian courts in proceedings under the Extradition Act. Thus, the courts must proceed in accordance with law and impose the sentence as the law of the land requires, while simultaneously the Executive is bound to comply with its international obligations under the Extradition Act as also on the principle of comity of courts, which forms the basis of the extradition. [Para 39] Abu Salem v. State of Maharashtra, 2022 LiveLaw (SC) 578

F

Fair Investigation

Fair Investigation - Supreme Court criticises Madras High Court for keeping preliminary enquiry report in sealed cover without sharing with the accused- "When the State has not pleaded any specific privilege which bars disclosure of material utilized in the earlier preliminary investigation, there is no good reason for the High Court to have permitted the report to have remained shrouded in a sealed cover. (Para 28) S.P. Velumani v. Arappor Iyakkam, 2022 LiveLaw (SC) 507

Fair investigation - The principles of natural justice demanded that the appellant be afforded an opportunity to defend his case based on the material that had exonerated him initially, which was originally accepted by the State. (Para 22) S.P. Velumani v. Arappor Iyakkam, 2022 LiveLaw (SC) 507

Fair Price Shop

Fair Price Shop - Supreme Court upheld cancelation of the declaration of Fair Price Shop vacancies by State of West Bengal in view of the implementation of National Food Security Act. State of West Bengal v. Gitashree Dutta (Dey), 2022 LiveLaw (SC) 527

Fair Trial

Fair Trial - The approach of SEBI, in failing to disclose the documents also raises concerns of transparency and fair trial. Opaqueness only propagates prejudice and partiality. Opaqueness is antithetical to transparency. It is of utmost importance that in a country grounded in the Rule of Law, institutions ought to adopt procedures that further the democratic principles of transparency and accountability. Principles of fairness and transparency of adjudicatory proceedings are the cornerstone of the principles of open justice. (Para 46) Reliance Industries Ltd. v. Securities and Exchange Board of India, 2022 LiveLaw (SC) 659 : AIR 2022 SC 3690 : (2022) 10 SCC 181

Fake Pharmacists

Fake Pharmacists - PIL before Patna HC restored - The manner in which the High Court has disposed of the PIL ventilating the very serious grievances touching the health and life of the citizen is disapproved - High Court to call for detailed report/counter from the State of Bihar and Bihar State Pharmacy Council on (i) how many Governments' hospitals/hospitals/medical stores/private hospitals are being run either by fake pharmacist or without registered pharmacist; (ii) whether any action is taken by the State Government on the fact-finding committee report submitted by the Bihar State Pharmacy Council which was reported to be forwarded to the State Government; (iii) whether there are any fake pharmacists as alleged in the writ petition; (iv) any action is taken by the State Government or by the Bihar State Pharmacy Council against such fake pharmacist; (v) whether the Pharmacy Practice Regulations, 2015 are being followed in the entire State of Bihar or not. Mukesh Kumar v. State of Bihar, 2022 LiveLaw (SC) 995

Family Courts Act, 1984

Family Courts Act, 1984 - Madras High Court Family Courts (Procedure) Rules, 1996 - Rule 52 - A free copy may be supplied as per the requirement under the Family Courts Act but that is a far cry from holding that an appeal can be carried without a certified copy - Rejected argument that that an appeal can be maintained within thirty days even if it is in the absence of a certified copy. (Para 22, 23) N. Rajendran v. S. Valli, 2022 LiveLaw (SC) 224 : 2022 (3) SCALE 275

Family Courts Act, 1984 - Madras High Court Family Courts (Procedure) Rules, 1996 - Rule 52 - A free copy may be supplied as per the requirement under the Family Courts Act but that is a far cry from holding that an appeal can be carried without a certified copy - Rejected argument that that an appeal can be maintained within thirty days even if it is in the absence of a certified copy. (Para 22, 23) N. Rajendran v. S. Valli, 2022 LiveLaw (SC) 224 : 2022 (3) SCALE 275

Family Courts Act, 1984 - Section 19, 20 - Limitation Act, 1963- Section 12, 29(2) - The period spent in obtaining the copy can be excluded in calculating the period of limitation to file matrimonial appeals under Family Courts Act - Nothing inconsistent in Section 12 read with Section 29(2) of the Limitation Act with Section 19 of the Family Courts Act - Section 20 will not override the provisions of Section 12 of the Limitation Act. N. Rajendran v. S. Valli, 2022 LiveLaw (SC) 224 : 2022 (3) SCALE 275

Family Courts Act, 1984 - The Family Courts Act is not a standalone Act. It draws sustenance from Acts like the Hindu Marriage Act. This is for the reason that a petition within the meaning, for instance, of the Hindu Marriage Act, after a Family Court is established in India, is to be dealt with by the Family Court, on the grounds as provided under the Hindu Marriage Act. (Para 24) N. Rajendran v. S. Valli, 2022 LiveLaw (SC) 224 : 2022 (3) SCALE 275

Films and Television Institute of India

Films and Television Institute of India - Majority view of the Committee appointed by SC accepted - Individuals with color blindness should be permitted to enroll for ALL courses offered by FTII. There should be no bar to admissions to the FTII for colorblind individuals - FTII should make reasonable accommodation in their curriculum for candidates with color blindness, in all courses where there is a bar to the admission of colorblind individuals. (Para 26-35) Ashutosh Kumar v. Film and Television Institute of India, 2022 LiveLaw (SC) 429

Finance Act 1994

Finance Act 1994 - Service Tax - Secondment Agreement - Indian company employing services on employees seconded from overseas group companies can be said to be service recepient of manpower supply- Liable for service tax-The assessee was, for the relevant period, service recipient of the overseas group company concerned, which can be said to have provided manpower supply service, or a taxable service, for the two different periods in question (in relation to which show cause notices were issued). (Para 61) C.C. C.E. & S.T., Bangalore (Adjudication) Etc. v. M/s. Northern Operating Systems Pvt. Ltd., 2022 LiveLaw (SC) 526 : AIR 2022 SC 2450

Finance Act 1994; Section 65B (44) - Definition of "service" - does not include activities listed as "deemed" sale under Article 366(29A) of Constitution (Para 36) Commissioner of Service Tax New Delhi v. Quick Heal Technologies Ltd, 2022 LiveLaw (SC) 660 : AIR 2022 SC 3660

Finance Act, 1992 - Service Tax - Mega Exemption Notification no.25 of 2012–ST - Clause 5A - Services by a specified organisation in respect of a religious pilgrimage facilitated by the Ministry of External Affairs of the Government of India, under bilateral arrangement - specified organisations - Kumaon Mandal Vikas Nigam Limited, a Government of Uttarakhand Undertaking; or ‘Committee’ or ‘State Committee’ as defined in section 2 of the Haj Committee Act, 2002 - Haj Group Organizers not specified organisation - not eligible for exemption [Para 46, 47, 50, 52] All India Haj Umrah Tour Organizer Association Mumbai v. Union of India, 2022 LiveLaw (SC) 632

Finance Act, 1992 - Service Tax - Mega Exemption Notification no.25 of 2012–ST - Clause 5(b) - Services by a person by way of conduct of any religious ceremony - It only exempts service provided by way of conduct of any religious ceremony - The service rendered by HGOs to Haj pilgrims is to facilitate them to reach at the destination to perform rituals/religious ceremonies. No religious ceremony is performed or conducted by the HGOs. [Para 51, 52] All India Haj Umrah Tour Organizer Association Mumbai v. Union of India, 2022 LiveLaw (SC) 632

Finance Act, 1994; Section 65(44) - excludes from the sweep of service tax "a provision of service by an employee to the employer in the course of or in relation to his employment." - while the control (over performance of the seconded employees' work) and the right to ask them to return, if their functioning is not as is desired, is with the assessee, the fact remains that their overseas employer in relation to its business, deploys them to the assessee, on secondment. Secondly, the overseas employer- for whatever reason, pays them their salaries - their terms of employment, even during the secondment, are in accord with the policy of the overseas company, who is their employer - upon the end of the period of secondment, they return to their original places, to await deployment or extension of secondment. [Para 45 & 57] C.C. C.E. & S.T., Bangalore (Adjudication) Etc. v. M/s. Northern Operating Systems Pvt. Ltd., 2022 LiveLaw (SC) 526 : AIR 2022 SC 2450

Foreign Contribution (Regulation) Act, 2010

Foreign Contribution (Regulation) Act, 2010 - It is open to the State to have a regime which may completely prohibit receipt of foreign donation, as no right inheres in the citizen to receive foreign contribution (donation). (Para 74) Noel Harper v. Union of India, 2022 LiveLaw (SC) 355 : 2022 (5) SCALE 775

Foreign Contribution (Regulation) Act, 2010; Section 12(1A) and 17(1) - Opening of main FCRA account in the designated bank as per the law made by the Parliament in that regard, cannot be brushed aside on the specious argument of some inconvenience being caused to the registered associations. (Para 76) Noel Harper v. Union of India, 2022 LiveLaw (SC) 355 : 2022 (5) SCALE 775

Foreign Contribution (Regulation) Act, 2010; Section 7 - Complete prohibition regarding transfer of foreign contribution to third party - The transfer within the meaning of Section 7, would be a case of per se (simplicitor) transfer by the recipient of foreign contribution to third party without requiring to engage in the definite activities of cultural, economic, educational or social programme of the recipient of foreign contribution, for which the recipient had obtained a certificate of registration from the Central Government - If the recipient of foreign contribution engages services of some third party or outsources its certain activities to third person, whilst undertaking definite activities itself and had to pay therefor, it would be a case of utilisation. (Para 47) Noel Harper v. Union of India, 2022 LiveLaw (SC) 355 : 2022 (5) SCALE 775

Foreign Contribution (Regulation) Amendment Act, 2020 - Constitutional Validity upheld - Amended provisions vide the 2020 Act, namely, Sections 7, 12(1A), 12A and 17 of the FCRA Act, 2010, are intra vires the Constitution and the Principal Act - Section 12A read down and construed as permitting the key functionaries/office bearers of the applicant (associations/NGOs) who are Indian nationals, to produce Indian Passport for the purpose of their identification. (Para 87) Noel Harper v. Union of India, 2022 LiveLaw (SC) 355 : 2022 (5) SCALE 775

Foreign Exchange Regulation Act, 1973 - Banking Companies (Period of Preservation of Records) Rules, 1985 - FERA Proceedings initiated against Banks - Show causes notices issued in the year 2002, i.e., after a period of almost one decade from the date of the alleged transactions of 1992-1993, were not tenable in law - The Banks are required to preserve the record for five years and eight years respectively - Permitting the show cause notices and the proceedings continued thereunder of the transactions which have taken place much prior to eight years would be unfair and unreasonable. Union of India v. Citibank NA, 2022 LiveLaw (SC) 704

Foreigners Act, 1946

Foreigners Act, 1946 - Appellant Engineer accused of facilitating visit by two Chinese citizens who were on tourist visas to Rewa Solar Plant Project site - No indication or allegation that the appellant was aware and had knowledge that the Chinese citizens had traveled on tourist visas - Criminal proceedings quashed. Abinash Dixit v. State of Madhya Pradesh, 2022 LiveLaw (SC) 218

Foreigners Act 1946 – Citizenship - Supreme Court orders the release of a 62-year old man named Mohammad Qamar, who has been under detention in a Foreigners Detention Centre since 2015 on being adjudged that he belonged to Pakistan and that he was not an Indian citizen - The Court directed the Union Government to take a decision on granting him Long Term Visa. Ana Parveen v. Union of India, 2022 LiveLaw (SC) 1038

Foreigners Act, 1946 - Section 14C - Abetment - Mere passivity and insouciance will not tantamount to offence of abetment - The word 'abet' is an essential ingredient - 'Abet' means to aid, to encourage or countenance. An abetment of the offence occurs when a person instigates any person to do that offence or engages with another person(s) in doing that thing. Abinash Dixit v. State of Madhya Pradesh, 2022 LiveLaw (SC) 218

Forest (Conservation) Act, 1980

Forest (Conservation) Act, 1980; Section 2 - "Forest" or "any forest land" - (1) Statutorily recognized forests such as reserved or protected forests to which clause (i) of Section 2 is applicable; (2) The forests as understood in accordance with dictionary sense and (3) Any area recorded as a forest in Government records. (Para 38) Narinder Singh v. Divesh Bhutani, 2022 LiveLaw (SC) 620 : AIR 2022 SC 3479

Forest (Conservation) Act, 1980; Section 2 - The State Government or the competent authority cannot permit use for non-forest activities without obtaining prior approval from the Central Government - The power given to the Central Government under Section 2 must be exercised by adopting scientific and consistent yardsticks for applying the principles of sustainable development. (Para 36-37) Narinder Singh v. Divesh Bhutani, 2022 LiveLaw (SC) 620 : AIR 2022 SC 3479

Forest (Conservation) Act, 1980; Section 2 (ii-iv) - The specific land in respect of which a special order under section 4 of PLPA has been issued will have all the trappings of a forest governed by clauses (ii) to (iv) of Section 2 of the 1980 Forest Act - Whether the special orders under Section 4 continue to be in force or not, the lands covered by the said notifications will continue to fall in the category of forests covered by Section 2 of the 1980 Forest Act. (Para 47 - 60) Narinder Singh v. Divesh Bhutani, 2022 LiveLaw (SC) 620 : AIR 2022 SC 3479

Forest (Conservation) Act, 1980; Section 2(i) - State Government cannot exercise the power under Section 27 of the 1927 Forest Act of declaring that a particular land will cease to be a reserved forest unless there is prior approval from the Central Government. (Para 43) Narinder Singh v. Divesh Bhutani, 2022 LiveLaw (SC) 620 : AIR 2022 SC 3479

Forest (Conservation) Act, 1980; Section 2(ii-iv) - Forest - Dictionary meaning - A large or extensive tract of land having a dense growth of trees, thickets, mangroves etc. A small isolated plot of land will not come within the ambit merely because there are some trees or thickets thereon, as opposed to extensive tract of land covered with dense growth of trees and underbrush or plants resembling a forest in profusion or lushness. (Para 40) Narinder Singh v. Divesh Bhutani, 2022 LiveLaw (SC) 620 : AIR 2022 SC 3479

Forest (Conservation) Act, 1980; Section 2(ii-iv) - Government Records - A Government record is a record maintained by its various departments - Only the entries made after following due process can be a part of any Government record. Government records will include land or revenue records and the record of the forest department. (Para 41) Narinder Singh v. Divesh Bhutani, 2022 LiveLaw (SC) 620 : AIR 2022 SC 3479

Forest Act, 1927

Forest Act, 1927 - Concept of forest discussed. (Para 26-30) Narinder Singh v. Divesh Bhutani, 2022 LiveLaw (SC) 620 : AIR 2022 SC 3479

Forfeiture

Forfeiture - Forfeitures can be categorized as civil and criminal. On the civil side, there can be in rem or in personam forfeitures. Punitive forfeitures under the criminal law are in personam. Criminal forfeitures usually take place at the conclusion of a trial, when the guilt of the accused is established. Standards of evidentiary requirement differ greatly between civil and criminal forfeiture - The utility of independent provisions of forfeiture, distinct from criminal prosecution, needs to be utilised in a proportional manner, looking at the gravity of the offence. Few examples which may pass the muster of proportionality for having such stringent civil forfeiture, may relate to crimes involving terrorist activities, drug cartels or organised criminal activities - The application of such a provision to numerous other offences which are not of such grave severity, would be of serious risk of being disproportionate, if procedures independent of criminal prosecution are prescribed. (Para 17.15, 17.28) Union of India v. Ganpati Dealcom Pvt. Ltd., 2022 LiveLaw (SC) 700 : AIR 2022 SC 4558

Fraud

Fraud vitiates all actions. (Para 17) New Okhla Industrial Development Authority v. Ravindra Kumar Singhvi, 2022 LiveLaw (SC ) 184 : AIR 2022 SC 928 : (2022) 5 SCC 591

G

Gangsters and Anti-Social Activities

Gangsters and Anti-Social Activities (Prevention) Act, 1986 (Uttar Pradesh); Section 2(b) - Even a single crime committed by a 'Gang' is sufficient to implant Gangsters Act on such members of the 'Gang' - There can be prosecution against a person even in case of a single offence/FIR/charge sheet for any of the anti-social activities mentioned in Section 2(b) of the Act provided such an anti-social activity is by violence, or threat or show of violence, or intimidation, or coercion or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person. (Para 9-10) Shraddha Gupta v. State of Uttar Pradesh, 2022 LiveLaw (SC) 411 : AIR 2022 SC 2062

Gangsters and Anti-Social Activities (Prevention) Act, 1986 (Uttar Pradesh) - All provisions are to ensure that the offences under the Gangsters Act should be given preference and should be tried expeditiously and that too, by the Special Courts, to achieve the object and purpose of the enactment of the Gangsters Act. (Para 8) Shraddha Gupta v. State of Uttar Pradesh, 2022 LiveLaw (SC) 411 : AIR 2022 SC 2062

General Clauses Act, 1897

General Clauses Act, 1897 - The principles of the General Clauses Act can be made applicable to statutes made by the State Legislatures as well. (Para 20) State of Manipur v. Surjakumar Okram, 2022 LiveLaw (SC) 113

General Clauses Act, 1897; Section 21 - Assuming that the State was having power to amend, vary or rescind the notification, in that case also such power can be exercised in a like manner, namely after following the procedure, which was followed while issuing the original notification. (Para 9) Gomantak Mazdoor Sangh v. State of Goa, 2022 LiveLaw (SC) 466 : 2022 (7) SCALE 789

General Sales Tax Act, 1963 (Kerala)

General Sales Tax Act, 1963 (Kerala) - The surcharge on sales tax levied by the said Act is nothing but an increase of the basic sales tax levied under Section 5(1) of the KGST Act, as such the surcharge is nothing but a sales tax- A surcharge on a tax is nothing but the enhancement of the tax. (Para 14.4) Kerala State Beverages Manufacturing & Marketing Corporation Ltd. v. Assistant Commissioner of Income Tax Circle 1(1), 2022 LiveLaw (SC) 4 : AIR 2022 SC 309 : (2022) 4 SCC 240

Gift Tax Act, 1958

Gift Tax Act, 1958 - Valuation of shares for the purpose of gift tax must take into consideration the limitations and restrictions. Deputy Commissioner of Gift Tax v. BPL Ltd., 2022 LiveLaw (SC) 848

Goods and Service Tax

Goods and Service Tax - Document Identification Number (DIN) System - Union of India / GST Council to issue advisory / instructions / recommendations to the respective States regarding implementation of the system of electronic (digital) generation of a DIN in the indirect tax administration - States to consider to implement the system for electronic (digital) generation of a DIN for all communications sent by the State Tax Officers to taxpayers and other concerned persons so as to bring in transparency and accountability in the indirect tax administration at the earliest - It would be in the larger public interest and enhance good governance. (Para 6-7) Pradeep Goyal v. Union of India, 2022 LiveLaw (SC) 654

Goods and Services Tax - Non-extension of e-way bill would not automatically amount to evasion of tax, especially when the non-delivery of goods within the validity period of the e-way bill was due to external factors, like, traffic blockage. Asst. Commissioner v. Satyam Shivam Papers, 2022 LiveLaw (SC) 87

Goods and Services Tax - Private Haj tour operators not entitled to claim GST exemption available for conducting religious ceremony - Haj Group Organizers are not performing any religious ceremony - HGOs can't claim parity with Haj Committee, which is a specified organization eligible for GST exemption for services in relation to pilgrimage. All India Haj Umrah Tour Organizer Association Mumbai v. Union of India, 2022 LiveLaw (SC) 632

Goods and Services Tax - Supreme Court allows 2 months additional window from September 1, 2022 to October 31, 2022 to claim transitional credit - Directions issued. Union of India v. Filco Trade Centre Pvt. Ltd., 2022 LiveLaw (SC) 628

Goods and Services Tax (GST) - The recommendations of the GST council are not binding on the Union and the State Governments. The Parliament intended that the recommendations of the GST Council will have persuasive value. Both the Parliament and the State Legislatures can equally legislate on matters of Goods and Service Tax. Union of India v. Mohit Minerals, 2022 LiveLaw (SC) 500 : 2022 (8) SCALE 552

Gujarat Riots 2002

Gujarat Riots 2002 - Plea for probe into alleged larger conspiracy by high state functionaries dismissed- Upholds SIT's closure report exonerating Narendra Modi and 63 other high officials - Held, Conspiracy cannot be readily inferred merely on the basis of the inaction or failure of the State administration -inaction or failure of some officials of one section of the State administration cannot be the basis to infer a pre- planned criminal conspiracy by the authorities of the State Government or to term it as a State sponsored crime (violence) against the minority community. (Para 44 - 47) Zakia Ahsan Jafri v. State of Gujarat, 2022 LiveLaw (SC) 558 : 2022 (9) SCALE 385

H

Haj Pilgrims

Haj Pilgrims - Bifurcation of services rendered by the HGOs - cannot be bifurcated into two parts; services provided within taxable territory and those provided outside the taxable territory for the purpose of tax exemption - HGOs receive charges from Haj pilgrims for the entire package; it is not the case of the HGOs that they charge separately for different services forming a part of the comprehensive package - only a part of the package cannot be picked up for invoking exemption - for the purposes of levy of service tax, the service rendered cannot be dissected like this. [Para 54] All India Haj Umrah Tour Organizer Association Mumbai v. Union of India, 2022 LiveLaw (SC) 632

Hate Speech

Hate Speech - Supreme Court directs Uttar Pradesh, Uttarakhand and Delhi Governments to take suo motu action against hate speech crimes without waiting for formal complaints irrespective of the religion of the offender - Respondent Nos. 2 to 4 shall ensure that immediately as and when any speech or any action takes place which attracts offences such as Sections 153A, 153B and 295A and 505 of the IPC etc., suo moto action will be taken to register cases even if no complaint is forthcoming and proceed against the offenders in accordance with law. Shaheen Abdullah v. Union of India, 2022 LiveLaw (SC) 872

Hawking

Hawking - Any hawker can be permitted to hawk in the market only as per the hawking policy and not de hors the same - A hawker has no right to insist that he may be permitted to keep his goods and wares at the place where he is hawking overnight. (Para 1). Madan Lal v. NDMC, 2022 LiveLaw (SC) 373

High Court (Public Interest Litigation) Rules, 2010 (Jharkhand)

High Court (Public Interest Litigation) Rules, 2010 (Jharkhand); Rules 4, 4-A, 4-B, 5 , 6A - Jharkhand HC held that Rules 4, 4A, 4B and 5 are not mandatory but directory in nature in view of Rule 6-A and therefore even though the Rules have not been followed that really will not come in the way of the Court to entertain a PIL, since the nature of allegations in the PIL was of a serious nature - Disapproving this view, the Supreme Court held: This reasoning, in our view, is in teeth of the directions given in State of Uttaranchal v. Balwant Singh Chaufal ((2010) 3 SCC 402), as well as a clear violation of the Jharkhand High Court Rules, primarily Rule 4-B. - The locus of the petitioner who initiates a PIL is therefore of extreme importance as this important form of litigation should not be abused by motivated individuals to abuse the process of the Court for their political purposes or for any other reason, but for a Public Cause. (Para 14-16) State of Jharkhand v. Shiv Shankar Sharma, 2022 LiveLaw (SC) 924

High Court Rules (Bombay)

High Court Rules (Bombay); Chapter XXX; Rule 3(1) Proviso - Once an application was preferred by any of the parties that a review may be heard by the Judge who had decided the matter and had passed the order from which the review arose, the matter ought to have been placed before the Chief Justice on the administrative side rather than order being passed on the judicial side. The proviso to Rule 3(1) of Chapter XXX of the Rules confers this power on the Chief Justice to assign a particular matter to a single Judge for hearing of the review application where the single Judge concerned was not available for the time being by reason of being on leave or otherwise as aforesaid i.e. where he had ceased to sit at a particular Bench. The Chief Justice, is the master of roster and is conferred with specific powers of assigning review petitions in given circumstances under the Rules. Suresh G. Ramnani v. Aurelia Ana De Piedade Miranda @ Ariya Alvares, 2022 LiveLaw (SC) 939

High Court Rules (Patna)

High Court Rules (Patna) - Rule 8 of Chapter XII - Appeal against conviction shall be heard for admission unless the accused has surrendered to the order of the Court below convicting him to a sentence of imprisonment except in a case where the appellant has been released on bail by the trial court after convicting him - This Rule applies to the pre-admission stage, not applicable after admission. (Para 7) Dhananjay Rai @ Guddu Rai v. State of Bihar, 2022 LiveLaw (SC) 597 : AIR 2022 SC 3346

Highways Act, 2001 (Tamil Nadu)

Highways Act, 2001 (Tamil Nadu); Section 15(2) - Highways Rules, 2003 (Tamil Nadu); Rule 5(2) - Highways Department may or may not file a statement by way of answer to the objections by land owners - Not a mandatory requirement - Non-filing of a statement by way of answer to the objections by the Highways Department and/or nonfurnishing the copy of the same to the original land owners shall not vitiate the entire process of acquisition process. (Para 5.1) M. Mohan v. State Government of Tamil Nadu, 2022 LiveLaw (SC) 737 : AIR 2022 SC 4085

Highways Act, 2001 (Tamil Nadu); Section 15(2) - Tamil Nadu Highways Rules, 2003; Rule 5 - Rule 5 cannot be said to be inconsistent with Section 15(2) of the Act. (Para 7) M. Mohan v. State Government of Tamil Nadu, 2022 LiveLaw (SC) 737 : AIR 2022 SC 4085

Hijab Ban Case

Hijab Ban Case - Appeals against Karnataka High Court judgment which upheld Hijab Ban in some schools/pre-university colleges - In view of the divergent views expressed by the Bench, the matter placed before the Chief Justice of India for constitution of an appropriate Bench. Aishat Shifa v. State of Karnataka, 2022 LiveLaw (SC) 842

Hindu Adoption & Maintenance Act, 1956

Hindu Adoption & Maintenance Act, 1956; Section 12 - Adoption - While the main object of adoption in the past has been to secure the performance of one's funeral rights and to preserve the continuance of one's lineage, in recent times, the modern adoption theory aims to restore family life to a child deprived of his or her biological family - When child takes on to be a kosher member of the adoptive family it is only logical that he takes the surname of the adoptive family - A name is important as a child derives his identity from it and a difference in name from his family would act as a constant reminder of the factum of adoption and expose the child to unnecessary questions hindering a smooth, natural relationship between him and his parent. (Para 11-14) Akella Lalita v. Sri Konda Hanumantha Rao, 2022 LiveLaw (SC) 638 : AIR 2022 SC 3544

Hindu Adoption and Maintenance Act, 1956; Section 9(3) - Natural Guardian - Mother has an equal position as the father. (Para 9) Akella Lalita v. Sri Konda Hanumantha Rao, 2022 LiveLaw (SC) 638 : AIR 2022 SC 3544

Hindu Law

Hindu Law - Hindu woman's right to maintenance is a tangible right against the property which flows from the spiritual relationship between the husband and the wife. Such right was recognized and enjoined under the Shastric Hindu Law - It was not and is not an empty formality or an illusory claim being conceded as a matter of grace and generosity. (Para 14, 20) Munni Devi @ Nathi Devi v. Rajendra @ Lallu Lal, 2022 LiveLaw (SC) 515 : AIR 2022 SC 2596

Hindu Law - Sources of Hindu law and Judicial precedents discussed - Ancient text as also the Smritis, the Commentaries written by various renowned learned persons and even judicial pronouncements have recognized the rights of several female heirs, the wives and the daughter’s being the foremost of them. (Para 21 -65) Arunachala Gounder v. Ponnusamy, 2022 LiveLaw (SC) 71 : AIR 2022 SC 605

Hindu Marriage Act, 1955

Hindu Marriage Act, 1955 - Section 13(1) (ib) - Desertion - Merely because on account of the death of the appellant's mother, the respondent visited her matrimonial home in December 2009 and stayed there only for one day, it cannot be said that there was a resumption of cohabitation. (Para 11) Debananda Tamuli v. Smti Kakumoni Kataky, 2022 LiveLaw (SC) 167 : AIR 2022 SC 1099 : (2022) 5 SCC 459

Hindu Marriage Act, 1955 - Section 13(1) (ib) - Desertion - The reasons for a dispute between husband and wife are always very complex. Every matrimonial dispute is different from another. Whether a case of desertion is established or not will depend on the peculiar facts of each case. It is a matter of drawing an inference based on the facts brought on record by way of evidence. (Para 8) Debananda Tamuli v. Smti Kakumoni Kataky, 2022 LiveLaw (SC) 167 : AIR 2022 SC 1099 : (2022) 5 SCC 459

Hindu Marriage Act, 1955 - Section 13(1) (ib) - Desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and there is an intention on the part of deserting spouse to bring the cohabitation to a permanent end - There should be animus deserendi on the part of the deserting spouse. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. (Para 7) Debananda Tamuli v. Smti Kakumoni Kataky, 2022 LiveLaw (SC) 167 : AIR 2022 SC 1099 : (2022) 5 SCC 459

Hindu Marriage Act, 1955; Section 9, 26 - Orders giving visitation rights or temporary child custody cannot be passed in a proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights - A separate and independent petition under Section 26 has to be filed. Priyanka v. Santoshkumar, 2022 LiveLaw (SC) 1021

Hindu Marriage Act, 1956 - Section 15 - Filing of appeal must be treated as having been presented within the meaning of Section 15 of the Act. The argument that not only must the appellant file the appeal, or prefer the appeal or present the appeal, but he must also ensure that the appeal comes on the judicial side of the High Court is clearly without any basis. (Para 27) N. Rajendran v. S. Valli, 2022 LiveLaw (SC) 224 : 2022 (3) SCALE 275

Hindu Minority and Guardianship Act, 1956

Hindu Minority and Guardianship Act, 1956; Section 13 - Custody Petition - The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents - the rights of the parents are irrelevant when a Court decides the custody issue. (Para 26, 32) Vasudha Sethi v. Kiran V. Bhaskar, 2022 LiveLaw (SC) 48 : AIR 2022 SC 476

Hindu Succession Act, 1955

Hindu Succession Act, 1955; Section 2(2), 6 - Female member of the Scheduled Tribe is not entitled to any right of survivorship under the provisions of Hindu Succession Act - It is high time for the Central Government to look into the matter and if required, to amend the provisions of the Hindu Succession Act by which it is not made applicable to the members of the Scheduled Tribe - Female tribal is entitled to parity with male tribal in intestate succession. (Para 7-7.2) Kamla Neti v. Special Land Acquisition Officer, 2022 LiveLaw (SC) 1014

Hindu Succession Act, 1956 - Section 14 - Sub -section (2) of Section 14 inter alia applies to a Will which may create independent and new title in favour of females for the first time and is not a recognition of a pre -existing right. In such cases of a restricted estate in favour of a female is legally permissible and Section 14(1) of the said Act will not operate in that sphere. (Para 30) Jogi Ram v. Suresh Kumar, 2022 LiveLaw (SC) 115 : (2022) 4 SCC 274

Hindu Succession Act, 1956 - Section 14(1) - The objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self -acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. (Para 31) Jogi Ram v. Suresh Kumar, 2022 LiveLaw (SC) 115 : (2022) 4 SCC 274

Hindu Succession Act, 1956; Section 14 - The legislative intent of enacting Section 14(I) of the Act was to remedy the limitation of a Hindu woman who could not claim absolute interest in the properties inherited by her but only had a life interest in the estate so inherited. (Para 69) Arunachala Gounder v. Ponnusamy, 2022 LiveLaw (SC) 71 : AIR 2022 SC 605

Hindu Succession Act, 1956; Section 14(1) - The words "possessed by" used in Section 14(1) are of the widest possible amplitude and include the state of owning a property, even though the Hindu woman is not in actual or physical possession of the same - The possession of the widow, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. (Para 14) Munni Devi @ Nathi Devi v. Rajendra @ Lallu Lal, 2022 LiveLaw (SC) 515 : AIR 2022 SC 2596

Hindu Succession Act, 1956; Section 14(1) - Where a Hindu widow is found to be in exclusive settled legal possession of the HUF property, that itself would create a presumption that such property was earmarked for realization of her pre-existing right of maintenance, more particularly when the surviving co-parcener did not earmark any alternative property for recognizing her pre-existing right of maintenance. (Para 20) Munni Devi @ Nathi Devi v. Rajendra @ Lallu Lal, 2022 LiveLaw (SC) 515 : AIR 2022 SC 2596

Hindu Succession Act, 1956; Section 15 - Inherited property of a female Hindu dying issueless and intestate, goes back to the source - If a female Hindu dies intestate without leaving any issue, then the property inherited by her from her father or mother would go to the heirs of her father whereas the property inherited from her husband or father-in-law would go to the heirs of the husband. In case, a female Hindu dies leaving behind her husband or any issue, then Section 15(1)(a) comes into operation and the properties left behind including the properties which she inherited from her parents would devolve simultaneously upon her husband and her issues as provided in Section 15(1)(a) of the Act. (Para 72-73) Arunachala Gounder v. Ponnusamy, 2022 LiveLaw (SC) 71 : AIR 2022 SC 605

Hindu Undivided Family

Hindu Undivided Family - Joint Family Property - Gift - A Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a 'pious purpose' - Term 'pious purpose' is a gift for charitable and/or religious purpose - A deed of gift in regard to the ancestral property executed 'out of love and affection' does not come within the scope of the term 'pious purpose'. (Para 13) K.C. Laxmana v. K.C. Chandrappa Gowda, 2022 LiveLaw (SC) 381 : 2022 (6) SCALE 315

Hindu Undivided Family - Joint Family Property - Power to alienate only in three situations, namely, (i) legal necessity (ii) for the benefit of the estate and (iii) with the consent of all the coparceners of the family - Where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained. (Para 12) K.C. Laxmana v. K.C. Chandrappa Gowda, 2022 LiveLaw (SC) 381 : 2022 (6) SCALE 315

I

Imposition of Ceiling on Land Holdings Act, 1960 (Uttar Pradesh)

Imposition of Ceiling on Land Holdings Act, 1960 (Uttar Pradesh) - If subletting is in derogation of the terms of the Lease Deed, then the sub-lessee continues to be the ostensible tenure holder of land and the lessee the real holder. (Para 31-32) Hardev Singh v. Prescribed Authority, 2022 LiveLaw (SC) 44 : AIR 2022 SC 436 : (2022) 3 SCC 21

Income Tax Act, 1961

Income Tax Act, 1961 - Appeal against Gujarat High Court judgment extending the immunity under the "Income Declaration Scheme" (IDS) to an assessee who was not the declarant under the scheme - Allowed - The High Court fell into error, in holding that the sequitur to a declaration under the IDS can lead to immunity (from taxation) in the hands of a non-declarant. Deputy Commissioner of Income Tax v. MR Shah Logistics, 2022 LiveLaw (SC) 323 : 2022 (5) SCALE 395

Income Tax Act, 1961 - The ‘fee’ or ‘charge’ as mentioned in Section 40(a)(iib) is clear in terms and that will take in only ‘fee’ or ‘charge’ as mentioned therein or any fee or charge by whatever name called, but cannot cover tax or surcharge on tax and such taxes are outside the scope and ambit of Section 40(a)(iib)(A) and Section 40(a)(iib)(B) of the Act. (Para 14.3) Kerala State Beverages Manufacturing & Marketing Corporation Ltd. v. Assistant Commissioner of Income Tax Circle 1(1), 2022 LiveLaw (SC) 4: AIR 2022 SC 309 : (2022) 4 SCC 240

Income Tax Act, 1961 - The aspect of ‘exclusivity’ under Section 40(a)(iib) has to be viewed from the nature of undertaking on which levy is imposed and not on the number of undertakings on which the levy is imposed- Exclusivity is to be considered with reference to nature of licence and not on number of State-owned Undertakings. (Para 14.2) Kerala State Beverages Manufacturing & Marketing Corporation Ltd. v. Assistant Commissioner of Income Tax Circle 1(1), 2022 LiveLaw (SC) 4: AIR 2022 SC 309 : (2022) 4 SCC 240

Income Tax Act, 1961 - The surcharge on sales tax and turnover tax, is not a fee or charge coming within the scope of Section 40(a)(iib)(A) or 40(a)(iib)(B), as such same is not an amount which can be disallowed under the said provision. (Para 16) Kerala State Beverages Manufacturing & Marketing Corporation Ltd. v. Assistant Commissioner of Income Tax Circle 1(1), 2022 LiveLaw (SC) 4 : AIR 2022 SC 309 : (2022) 4 SCC 240

Income Tax Act, 1961 - Turnover tax is also outside the purview of Section 40(a) (iib)(A) and 40(a)(iib)(B). (Para 15) Kerala State Beverages Manufacturing & Marketing Corporation Ltd. v. Assistant Commissioner of Income Tax Circle 1(1), 2022 LiveLaw (SC) 4 : AIR 2022 SC 309 : (2022) 4 SCC 240

Section 2 (1A) - "Agricultural Income"

Income Tax Act, 1961; Section 2 (1A) - Companies Act, 1956; Section 394 (2), 481 - Despite amalgamation, the business, enterprise and undertaking of the transferee or amalgamated company- which ceases to exist, after amalgamation, is treated as a continuing one, and any benefits, by way of carry forward of losses (of the transferor company), depreciation, etc., are allowed to the transferee - Whether corporate death of an entity upon amalgamation per se invalidates an assessment order ordinarily cannot be determined on a bare application of Section 481 of the Companies Act, 1956 (and its equivalent in the 2013 Act), but would depend on the terms of the amalgamation and the facts of each case. (Para 42) Principal Commissioner of Income Tax v. Mahagun Realtors (P) Ltd; 2022 LiveLaw (SC) 346 : AIR 2022 SC 1672

Section 2 (15) - "Charitable Purpose"

Income Tax Act, 1961; Section 2(15) - Tax exemption for charitable purposes - An assessee advancing general public utility cannot engage itself in any trade, commerce or business, or provide service in relation thereto for any consideration-However, in the course of achieving the object of general public utility, the concerned trust, society, or other such organization, can carry on trade, commerce or business or provide services in relation thereto for consideration, provided that the activities of trade, commerce or business are connected to the achievement of its objects of GPU; and the receipts do not exceed the quantified limit. (Para 253) Assistant Commissioner of Income Tax v. Ahmedabad Urban Development Authority, 2022 LiveLaw (SC) 865

Income Tax Act 1961; Section 2(15) - Tax exemption for charitable purposes - for achieving a general public utility object, if the charity involves itself in activities, that entail charging amounts only at cost or marginal mark up over cost, and also derive some profit, the prohibition against carrying on business or service relating to business is not attracted - if the quantum of such profits do not exceed 20% of its overall receipts. (Para 172) Assistant Commissioner of Income Tax v. Ahmedabad Urban Development Authority, 2022 LiveLaw (SC) 865

Income Tax Act 1961; Section 2(15) - Amounts charged by statutory authorities, corporations, statutory regulatory authorities for their public activities can't be treated as commercial receipts-However, if the amounts collected are significantly higher than the costs incurred, it can be treated as commercial income. (Para 253) Assistant Commissioner of Income Tax v. Ahmedabad Urban Development Authority, 2022 LiveLaw (SC) 865

Income Tax Act 1961; Section 2(15) - Tax exemption for professional bodies like ICAI- bodies which regulate professions and are created by or understatutes which are enjoined to prescribe compulsory courses to be undergone before the individuals concerned is entitled to claim entry into the profession or vocation, and also continuously monitor the conduct of its members do not ipsofacto carry on activities in the nature of trade, commerce or business, or services in relation thereto-However, this is subject to the caveat that if the assessing authorities discern that certain kinds of activities carried out by such regulatory body involved charging of fees that are significantly higher than the cost incurred (with a nominal mark-up) or providing other facilities or services such as admission forms, coaching classes, registration processing fees, etc., at markedly higher prices, those would constitute commercial or business receipts. (Para 196, 253) Assistant Commissioner of Income Tax v. Ahmedabad Urban Development Authority, 2022 LiveLaw (SC) 865

Section 10 - Incomes not included in total income

Income Tax Act, 1961; Section 10(23C) - The requirement of the charitable institution, society or trust etc., to 'solely' engage itself in education or educational activities, and not engage in any activity of profit, means that such institutions cannot have objects which are unrelated to education - All objects of the society, trust etc., must relate to imparting education or be in relation to educational activities - Where the objective of the institution appears to be profit-oriented, such institutions would not be entitled to approval under Section 10(23C) of the IT Act. At the same time, where surplus accrues in a given year or set of years per se, it is not a bar, provided such surplus is generated in the course of providing education or educational activities. (Para 60, 76-a,b) New Noble Educational Society v. Chief Commissioner of Income Tax 1,2022 LiveLaw (SC) 859 : 2022 (15) Scale 302

Income Tax Act, 1961; Section 10(23C) - Wherever registration of trust or charities is obligatory under state or local laws, the concerned trust, society, other institution etc. seeking approval under Section 10(23C) should also comply with provisions of such state laws. This would enable the Commissioner or concerned authority to ascertain the genuineness of the trust, society etc.). (Para 73,76-g) New Noble Educational Society v. Chief Commissioner of Income Tax 1,2022 LiveLaw (SC) 859 : 2022 (15) Scale 302

Income Tax Act, 1961; Section 10(5), 192(1) - Income Tax Rules, 1962; Rule 2B - Appeal against Delhi HC Judgment holding that amount received by SBI employees towards their Leave Travel Concession (LTC) claims is not liable for the exemption as these employees had visited foreign countries which is not permissible under the law - Dismissed - LTC is not for foreign travel - The travel must be done from one designated place in India to another designated place within India - The moment employees undertake travel with a foreign leg, it is not a travel within India and hence not covered under the provisions of Section 10(5) - Employer cannot claim ignorance about the travel plans of its employees as during settlement of LTC Bills the complete facts are available before the assessee about the details of their employees' travels. Therefore, it cannot be a case of bonafide mistake. State Bank of India v. Assistant Commissioner of Income Tax, 2022 LiveLaw (SC) 917 : AIR 2022 SC 5604

Income Tax Act, 1961; Section 10B(8) - For claiming the benefit under Section 10B (8) of the IT Act, the twin conditions of furnishing a declaration before the assessing officer and that too before the due date of filing the original return of income under section 139(1) are to be satisfied and both are mandatorily to be complied with. (Para 14) Principal Commissioner of Income Tax-III Bangalore v. Wipro Ltd., 2022 LiveLaw (SC) 583 : AIR 2022 SC 3466

Section 12AA - Procedure for registration

Income Tax Act, 1961; Section 12AA - Registration of a trust or institution - Even if in a case where the registration application under Section 12AA is not decided within six months, there shall not be any deemed registration. Harshit Foundation v Commissioner, 2022 LiveLaw (SC) 431

Section 36 - Other deductions

Income Tax Act, 1961; Sections 36(1)(va), 43B - The non-obstante clause under Section 43B or anything contained in that provision would not absolve the assessee from its liability to deposit the employee's contribution on or before the due date as a condition for deduction - There is a marked distinction between the nature and character of the two amounts viz. the employers' contribution and employees' contribution required to be deposited by the employer - the employer's liability is to be paid out of its income whereas the second is deemed an income, by definition, since it is the deduction from the employees' income and held in trust by the employer. (Para 53-54) Checkmate Services Pvt. Ltd. v. Commissioner of Income Tax-I, 2022 LiveLaw (SC) 838 : 2022 (15) SCALE 117

Section 37 – General

Income Tax Act, 1961; Section 37 - Loss suffered owing to exchange fluctuation while repaying loan can be regarded as revenue expenditure - The exchange fluctuation loss is an expenditure incidental to carrying on of business and comes within the purview of section 37 of the Act as the same is incurred wholly and exclusively for the purposes of business. (Para 3, 7-9) Wipro Finance Ltd. v. Commissioner of Income Tax, 2022 LiveLaw (SC) 418

Income Tax Act, 1961 - Section 37(1) - Explanation 1 contains within its ambit all such activities which are illegal/prohibited by law and/or punishable. (Para 17) Apex Laboratories Pvt. Ltd. v. Deputy Commissioner, 2022 LiveLaw (SC) 195 : 2022 (4) SCALE 26

Income Tax Act, 1961 - Section 37(1) - Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 - Pharmaceutical companies' gifting freebies to doctors, etc. is clearly "prohibited by law", and not allowed to be claimed as a deduction under Section 37(1) - When acceptance of freebies is punishable by the MCI, pharmaceutical companies cannot be granted the tax benefit for providing such freebies, and thereby (actively and with full knowledge) enabling the commission of the act which attracts such opprobrium. (Para 33, 22) Apex Laboratories Pvt. Ltd. v. Deputy Commissioner, 2022 LiveLaw (SC) 195 : 2022 (4) SCALE 26

Income Tax Act, 1961 - Section 37(1) - Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 - Denial of the tax benefit cannot be construed as penalizing the assessee pharmaceutical company. Only its participation in what is plainly an action prohibited by law, precludes the assessee from claiming it as a deductible expenditure. (Para 27) Apex Laboratories Pvt. Ltd. v. Deputy Commissioner, 2022 LiveLaw (SC) 195 : 2022 (4) SCALE 26

Section 40 - Amounts not deductible

Income Tax Act, 1961 - Kerala General Sales Tax Act, 1963 - Surcharge or tax were never intended to be included in the net of amended Section 40(a)(iib)(A) or 40(a)(iib)(B) of the Incometax Act, 1961. (Para 14.5) Kerala State Beverages Manufacturing & Marketing Corporation Ltd. v. Assistant Commissioner of Income Tax Circle 1(1), 2022 LiveLaw (SC) 4: AIR 2022 SC 309 : (2022) 4 SCC 240

Section 45 - Capital gains

Income Tax Act, 1961; Section 45(4) - Section 45(4) applicable to not only the cases of dissolution but also cases of subsisting partners of a partnership, transferring the assets in favour of a retiring partner. Commissioner of Income Tax v. Mansukh Dyeing and Printing Mills, 2022 LiveLaw (SC) 991

Section 127 - Power to transfer cases

Income Tax Act, 1961; Section 127 - by administrative order a 'case' can be transferred from one Assessing Authority to another Assessing Officer located in a different State - power of transfer under Section 127 relates to the jurisdiction of the Income Tax Authorities, not the ITAT of High Court - appellate jurisdiction of a High Court cannot dependent upon pure executive power exercised under Section 127 - transfer of a case from one judicial forum to another judicial forum, without the intervention of Court is against the independence of judiciary - even when cases of an assessee are transferred, the High Court within whose jurisdiction the Assessing Officer has passed the order, shall continue to exercise appellate jurisdiction - this would be true even when the transfer is under Section 127 for the same assessment year. [Para Nos. 19, 25, 26, 28, 29, 31, 33] Pr. Commissioner of Income Tax-I, Chandigarh v. ABC Papers Ltd., 2022 LiveLaw (SC) 686 : AIR 2022 SC 3905 : (2022) 9 SCC 1

Section 132 - Search and seizure

Income Tax Act, 1961; Section 132 - Appeal against the judgment of High Court of Gujarat whereby the warrant of authorization issued by Principal Director of Income Tax (Investigation) under Section 132 of the Income Tax Act was quashed - Allowed - The question as to whether such reasons are adequate or not is not a matter for the Court to review in a writ petition. The sufficiency of the grounds which induced the competent authority to act is not a justiciable issue. Principal Director of Income Tax (Investigation) v. Laljibhai KanjiBhai Mandalia, 2022 LiveLaw (SC) 592 : AIR 2022 SC 3304

Income Tax Act, 1961; Section 132 - Principles in exercising the writ jurisdiction in the matter of search and seizure under Section 132 restated. (Para 33) Principal Director of Income Tax (Investigation) v. Laljibhai KanjiBhai Mandalia, 2022 LiveLaw (SC) 592 : AIR 2022 SC 3304

Income Tax Act, 1961; Section 132 - Sufficiency or inadequacy of the reasons to believe recorded cannot be gone into while considering the validity of an act of authorization to conduct search and seizure. The belief recorded alone is justiciable but only while keeping in view the Wednesbury Principle of Reasonableness. Such reasonableness is not a power to act as an appellate authority over the reasons to believe recorded. (Para 32) Principal Director of Income Tax (Investigation) v. Laljibhai KanjiBhai Mandalia, 2022 LiveLaw (SC) 592 : AIR 2022 SC 3304

Section 148 - Issue of notice where income has escaped assessment.

Income Tax Act, 1961; Section 148, 148A - Finance Act, 2021 - (i) The respective impugned section 148 notices issued to the respective assessees shall be deemed to have been issued under section 148A of the IT Act as substituted by the Finance Act, 2021 and treated to be show cause notices in terms of section 148A(b). The respective assessing officers shall within thirty days from today provide to the assessees the information and material relied upon by the Revenue so that the assessees can reply to the notices within two weeks thereafter; (ii) The requirement of conducting any enquiry with the prior approval of the specified authority under section 148A(a) be dispensed with as a one time measure visàvis those notices which have been issued under Section 148 of the unamended Act from 01.04.2021 till date, including those which have been quashed by the High Courts; (iii) The assessing officers shall thereafter pass an order in terms of section 148A(d) after following the due procedure as required under section 148A(b) in respect of each of the concerned assessees; (iv) All the defences which may be available to the assessee under section 149 and/or which may be available under the Finance Act, 2021 and in law and whatever rights are available to the Assessing Officer under the Finance Act, 2021 are kept open and/or shall continue to be available and; (v) The present order shall substitute/modify respective judgments and orders passed by the respective High Courts quashing the similar notices issued under unamended section 148 of the IT Act irrespective of whether they have been assailed before this Court or not - The present order shall govern, not only the impugned judgments and orders passed by the High Court of Judicature at Allahabad, but shall also be made applicable in respect of the similar judgments and orders passed by various High Courts across the country and therefore the present order shall be applicable to pan India. (Para 8) Union of India v. Ashish Agarwal, 2022 LiveLaw (SC) 444 : AIR 2022 SC 2781

Constitution of India, 1950; Article 226 - Appeal against Bombay HC judgments dismissing writ petitions reopening of the assessment/re-assessment proceedings under Section 148 of the Income Tax Act - Allowed - Orders are bereft of reasoning as diverse grounds were urged/raised by the parties which ought to have been examined by the High Court in the first place and a clear finding was required to be recorded upon analysing the relevant documents - Remanded. Vishal Ashwin Patel v. Assistant Commissioner, 2022 LiveLaw (SC) 322 : 2022 (5) SCALE 392

Section 194A - Interest other than "Interest on securities"

Income Tax Act, 1961; Section 194A(1) - Any person who is responsible for paying to a resident any income by way of interest shall at the time of credit of such income to the account of the payee or at the time of payment thereof in cash/cheque or draft whichever is earlier deduct income tax thereon at the rates in force - the Union Bank of India did not deduct TDS at source while paying interest to Agra Development Authority, but subsequently deducted and deposited the same within the financial year. Union Bank of India v. Additional Commissioner of Income Tax (TDS), 2022 LiveLaw (SC) 278

Income Tax Act, 1961; Section 194A(3)(iii)(f) - Provided for exemption from mandate of Section 194A(1), inter alia, for paying interest to such corporations as notified by the Central Government - Central Government vide notification dated 22.10.1970 notified corporation established by a statute for the purpose of exemption - Applying the same principle as in Commissioner of Income Tax (TDS) Kanpur And Anr. v. Canara Bank (2018) 9 SCC 322, the Apex Court permitted Agra Development Authority to be considered as a corporation established by a statute - Therefore, Union Bank of India was eligible for the exemption. Union Bank of India v. Additional Commissioner of Income Tax (TDS), 2022 LiveLaw (SC) 278

Section 194H - Commission or brokerage

Income Tax Act, 1961; Section 194H - Contract Act, 1870; Section 182 - Application of Section 194H of the IT Act to the Supplementary Commission amounts earned by the travel agent - Section 194H is to be read with Section 182 of the Contract Act. If a relationship between two parties as culled out from their intentions as manifested in the terms of the contract between them indicate the existence of a principalagent relationship as defined under Section 182 of the Contract Act, then the definition of "Commission" under Section 194H of the IT Act stands attracted and the requirement to deduct TDS arises. Singapore Airlines Ltd. v. C.I.T., Delhi, 2022 LiveLaw (SC) 959

Section 220 - When tax payable and when assessee deemed in default.

Income Tax Act, 1961; Section 220(2A) - Merely raising the dispute before any authority cannot be a ground not to levy the interest and/or waiver of interest under Section 220(2A) - Otherwise each and every assessee may raise a dispute and thereafter may contend that as the assessee was bona fidely litigating and therefore no interest shall be leviable - Under Section 220(2) of the Act, the levy of simple interest on non-payment of the tax @ 1% p.a. is, as such, mandatory. Pioneer Overseas Corporation USA v. Commissioner of Income Tax, 2022 LiveLaw (SC) 944

Section 254 - Orders of Appellate Tribunal

Income Tax Act, 1961; Section 254 - Limitation to to entertain fresh claim would apply to the "assessing authority", but not impinge upon the plenary powers of the ITAT bestowed under Section 254 of the Act - Rejected contention that ITAT cannot entertain fresh claim for the first time. (Para 10-11) Wipro Finance Ltd. v. Commissioner of Income Tax, 2022 LiveLaw (SC) 418

Section 260A - Appeal to High Court

Income Tax Act, 1961; Section 260A - Appeals against every decision of ITAT shall lie only before the High Court within whose jurisdiction the assessing officer who passed the assessment order is situated. Commissioner of Income Tax - I v. Balak Capital Pvt. Ltd; 2022 LiveLaw (SC) 982

Income Tax Act, 1961; Section 260A - provides for a statutory appeal to the High Court against every order of the ITAT - does not specify the High Court before which an appeal would lie in cases where Tribunals operated for plurality of States - benches of the ITAT are constituted to exercise jurisdiction over more than one state; functions as the administrative discretion of the President - jurisdiction exercised by the benches of the ITAT do not follow the structure contemplated in Article 1 of the Constitution, which divides the Union into States and Union Territories - the appropriate High Court would be the one where the Assessing Authority is situated. [Para Nos. 13.3, 14, 15, 18, 30, 33] Pr. Commissioner of Income Tax-I, Chandigarh v. ABC Papers Ltd., 2022 LiveLaw (SC) 686 : AIR 2022 SC 3905 : (2022) 9 SCC 1

Income Tax Act 1961; Section 260A - Appeals against orders of Income Tax Appellate Tribunal (ITAT) will lie only before the High Court within whose jurisdiction the assessing officer is situated. Even if the case or cases of an assessee are transferred in exercise of power under Section 127 of the Act, the High Court within whose jurisdiction the Assessing Officer has passed the order, shall continue to exercise the jurisdiction of appeal. This principle is applicable even if the transfer is under Section 127 for the same assessment year(s). (Para 33) Pr. Commissioner of Income Tax-I, Chandigarh v. ABC Papers Ltd., 2022 LiveLaw (SC) 686 : AIR 2022 SC 3905 : (2022) 9 SCC 1

Section 271C - Penalty for failure to deduct tax at source

Income Tax Act, 1961; Section 271C - If the recipient of income on which TDS has not been deducted, even though it was liable to such deduction under the IT Act, has already included that amount in its income and paid taxes on the same, the Assessee can no longer be proceeded against for recovery of the short fall in TDS. However, it would be open to the Revenue to seek payment of interest under Section 201(1A) for the period between the date of default in deduction of TDS and the date on which the recipient actually paid income tax on the amount for which there had been a shortfall in such deduction. (Para 56) Singapore Airlines Ltd. v. C.I.T., Delhi, 2022 LiveLaw (SC) 959

Indian Medicine Central Council Act, 1970

Indian Medicine Central Council Act, 1970 - Appeal against orders of the Karnataka High Court, which had permitted Karnataka Ayurveda Medical College to admit students for the academic year 2018-2019 in view of the permission granted for the year 2019-2020 - Allowed - The finding that the permission granted for a subsequent academic year would also enure to the benefit of earlier academic year though the said institution was not fulfilling the criteria of minimum standard, is totally erroneous. Central Council for Indian Medicine v. Karnataka Ayurveda Medical College, 2022 LiveLaw (SC) 365 : AIR 2022 SC 1837 : (2022) 7 SCC 46

Indian Medicine Central Council Act, 1970 - Indian Medicine Central Council (PostGraduate Ayurveda Education) Regulations, 2012 - No medical college can open a new or higher course of study or training, including a post graduate course, except with the previous permission of the Central Government. Prior to such a permission being granted, the procedure as prescribed under Section 13A has to be followed. (Para 28) Central Council for Indian Medicine v. Karnataka Ayurveda Medical College, 2022 LiveLaw (SC) 365 : AIR 2022 SC 1837 : (2022) 7 SCC 46

Industrial Areas Development Act, 1966 (Karnataka)

Industrial Areas Development Act, 1966 (Karnataka); Section 28(1), 41 - Power to acquire land beyond development by KIADB - Regulations framed by the Board under Section 41 also contemplates acquiring land for the purpose of allotment to a single company to set up an industry. (Para 37-39) M.S.P.L. Ltd. v. State of Karnataka, 2022 LiveLaw (SC) 886

Industrial Areas Development Act, 1966 (Karnataka); Section 29(4) - Land Acquisition Act, 1894; Section 18(1) - Person Interested - A subsequent allottee after the land was acquired by KIADB, can neither be said to be a beneficiary nor a "person interested" for the purpose of determination of compensation - The acquisition under the Land Acquisition Act, 1894 and the acquisition under the KIAD Act, 1966 are both distinct and the provisions under both the Acts are distinguishable. (Para 7.3-7.4) Gregory Patrao v. Mangalore Refinery and Petrochemicals Ltd., 2022 LiveLaw (SC) 602 : (2022) 10 SCC 461

Industrial Areas Development Act, 1966 (Karnataka); Sections 1, 3, 28 - Appeal against judgment of Karnataka High Court quashing the notifications for acquisition of land - Allowed - Division Bench committed an error in quashing the acquisition proceedings. M.S.P.L. Ltd. v. State of Karnataka, 2022 LiveLaw (SC) 886

Industrial Disputes Act, 1947

Industrial Disputes Act, 1947 - Appeal against Karnataka High Court judgment which held that an employer must give proper opportunity of hearing to the workmen before deducting their wages for "go slow" approach by which they had failed to produce the agreed output - Disposed - The impugned judgment protects the interest of the appellant and the workmen by prescribing the right procedure which should be followed in case the appellant is of the opinion that the workmen, though present on duty, are not working and are not giving the agreed production on the basis of which wages and incentives have been fixed. Bata India Ltd. vs. Workmen of Bata India Ltd; 2022 LiveLaw (SC) 325 : (2022) 6 SCC 95

Industrial Disputes Act, 1947 - Industrial Tribunal - If irregularity or illegality committed by a Tribunal touches upon the jurisdiction to try and determine over a subject dispute is altogether beyond its purview, that question would go to the root of the matter and it would be within the jurisdiction of the superior court to correct such error. (Para 15) Oil and Natural Gas Corporation Ltd. v. President, Oil Field Employees Association, 2022 LiveLaw (SC) 176 : 2022 (2) SCALE 861

Industrial Disputes Act, 1947 - Industrial Tribunal - The Tribunal could not go beyond the disputes that were referred to it - The scope of jurisdiction of the Industrial Court is wide and in appropriate cases it has the jurisdiction even to make a contract. (Para 14, 25) Oil and Natural Gas Corporation Ltd. v. President, Oil Field Employees Association, 2022 LiveLaw (SC) 176 : 2022 (2) SCALE 861

Industrial Disputes Act, 1947 - Jurisdiction of civil court not ousted when the matter relates to correction of date of birth - Jurisdiction of the civil court is not ousted, as this is not a case relating to enforcement of a right or an obligation under the Industrial Disputes Act, 1947. Tulshi Choudhary v. Steel Authority of India Ltd., 2022 LiveLaw (SC) 668

Industrial Disputes Act, 1947 - Right of minority workmen to raise industrial dispute - A minority union of workers may raise an industrial dispute even if another union which consists of the majority of them enters into a settlement with the employer. (Para 20) Oil and Natural Gas Corporation Ltd. v. President, Oil Field Employees Association, 2022 LiveLaw (SC) 176 : 2022 (2) SCALE 861

Industrial Disputes Act, 1947 - Section 18 - Binding nature of a settlement on all persons employed in an establishment discussed. (Para 16 - 17) Oil and Natural Gas Corporation Ltd. v. President, Oil Field Employees Association, 2022 LiveLaw (SC) 176 : 2022 (2) SCALE 861

Industrial Disputes Act, 1947 - Section 33C(2) - Prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and/or difference of wages claimed by the workmen shall not be maintainable under Section 33C(2) of the Industrial Disputes Act. (Para 6) Bombay Chemical Industries v. Deputy Labour Commissioner, 2022 LiveLaw (SC) 130 : (2022) 5 SCC 629

Industrial Disputes Act, 1947 - Section 33C(2) - The benefit sought to be enforced under Section 33C (2) of the ID Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C (2) of the ID Act while the latter does not. (Para 6) Bombay Chemical Industries v. Deputy Labour Commissioner, 2022 LiveLaw (SC) 130 : (2022) 5 SCC 629

Industrial Disputes Act, 1947 - The principle of limited interference would apply to a proceeding of this nature under the 1947 Act. (Para 25) Oil and Natural Gas Corporation Ltd. v. President, Oil Field Employees Association, 2022 LiveLaw (SC) 176 : 2022 (2) SCALE 861

Industrial Disputes Act, 1947; Section 25F - If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. (Para 19) Armed Forces Ex Officers Multi Services Cooperative Society Ltd. v. Rashtriya Mazdoor Sangh (INTUC), 2022 LiveLaw (SC) 674 : AIR 2022 SC 3783 : (2022) 9 SCC 586

Industrial Disputes Act, 1947; Section 25F - Retrenchment - Principle of law that reemployment of retrenched workmen does not entitle them to claim continuity of service - This principle will only apply to cases where the retrenchment is bona fide - When retrenchment is not bona fide and once the orders of retrenchment are set aside, the workmen will naturally be entitled to continuity of service with order of back wages as determined by a Tribunal or a Court of law. (Para 16) Armed Forces Ex Officers Multi Services Cooperative Society Ltd. v. Rashtriya Mazdoor Sangh (INTUC), 2022 LiveLaw (SC) 674 : AIR 2022 SC 3783 : (2022) 9 SCC 586

Industrial Disputes Act, 1947; Section 25F - Retrenchment - Principle that a policy decision for re-organising the business based on economic considerations is within an enterprise's proprietary decision and retrenchment in this context must be accepted as an inevitable consequence - The material requirement of bona fide of the decision - When the retrenchment seems to have been imposed as retribution against the workmen for going on a strike, this principle will not apply. (Para 15) Armed Forces Ex Officers Multi Services Cooperative Society Ltd. v. Rashtriya Mazdoor Sangh (INTUC), 2022 LiveLaw (SC) 674 : AIR 2022 SC 3783 : (2022) 9 SCC 586

Industrial Disputes Act, 1947 - Section 33C(2) - Not open for the Labour Court to entertain disputed questions and adjudicate upon the employer - employee relationship - In an application under Section 33C(2) of the Industrial Disputes Act, the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or settlement on which the claim is based. (Para 6) Bombay Chemical Industries v. Deputy Labour Commissioner, 2022 LiveLaw (SC) 130 : (2022) 5 SCC 629

Information Technology Act, 2000

Information Technology Act, 2000; Section 66A - No one should be prosecuted under Section 66A of the Act, which was struck down as unconstitutional by the Court in 2015 in the Shreya Singhal Case. Peoples Union for Civil Liberties v. Union of India, 2022 LiveLaw (SC) 846

Insider trading

Insider trading – Profit motive – Mitigating factor – Distress sale – Securities and Exchange Board of India (SEBI) Act, 1992 (15 of 1992) – Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992 – Regulations 2(d), 2(e), 2(ha), 2(k), 3, 4 – Appeal under Section 15Z – Transaction likely to result in loss cannot be basis to accuse insider in possession of price-sensitive information of insider trading - Actual gain or loss immaterial – Motive for making a gain essential – MD & Chairman who sold shares to fund corporate debt restructuring (CDR) package before information about cancellation of shareholders’ agreements disclosed to the public held not guilty of insider trading – Similar to a distress sale – Test applied, whether an attempt to take advantage of or encash the benefit of information in possession made – Not the same as mens rea - Merely because a person was in possession of unpublished price sensitive information at the time go trading in securities, it cannot be held that the transaction becomes the mischief of "insider trading", unless it is established that there was an intention to take advantage of the information. [Paras 28, 31, 35, 37, 38, 42] Securities and Exchange Board of India v. Abhijit Rajan, 2022 LiveLaw (SC) 787