Supreme Court Weekly Round Up [March 1 to March 7 2021]

JUDGMENTS THIS WEEK

1. No Allegation That Promise To Marry Was False At The Inception: Supreme Court Quashes Rape Case

Case: Sonu @ Subhash Kumar vs. State of Uttar Pradesh [Criminal Appeal No 233 of 2021]

Citation: LL 2021 SC 137

A Division Bench comprising of Justices DY Chandrachud and MR Shah quashed an FIR alleging rape observing that there is no allegation to the effect that the promise to marry given by the accused was false at the inception.

The court also referred to the judgment in Pramod Suryabhan Pawar v State of Maharashtra in which it was observed thus:

"To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."

While allowing the appeal, the bench observed that in this case there was only a subsequent refusal on the part of the accused to marry the prosecuterix which gave rise to the registration of the FIR.

2. Application Under Order IX Rule 13 CPC Can Be Allowed Only When Sufficient Cause Is Made Out To Set Aside Ex­ Parte Decree: Supreme Court

Case: Subodh Kumar Vs. Shamim Ahmed [CA 802-803 of 2021]

Citation: LL 2021 SC 13

The bench comprising Justices Ashok Bhushan and R. Subhash Reddy observed that an application under Order 9 Rule 13 of the Code of Civil Procedure cannot be automatically granted and can be allowed only when sufficient cause is made out to set aside the ex­ parte decree.

In this case, the tenant had filed an application to set aside an ex-parte decree against him which was dismissed by the Trial Court on the ground that no deposit was made by the tenant as required by Section 17 of the Provincial Small Cause Courts Act, 1887 along with the said application. The High Court remanded the matter back to the trial court for reconsideration of tenant's application under Order 9 Rule 13 CPC and Section 5 of the Limitation Act in accordance with law.

3. OBC Reservation Cannot Exceed 50%: Supreme Court Reads Down Section 12(2)(c) Maharashtra Zilla Parishads and Panchayat Samitis Act

Case: Vikas Kishanrao Gawali vs. State Of Maharashtra [WP 980 OF 2019]

Citation: LL 2021 SC 13

The Supreme Court read down Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 which provides reservation of 27 per cent of seats in the Zilla Parishads and Panchayat Samitis.

"Reservation in favour of OBCs in the concerned local bodies can be notified to the extent that it does not exceed aggregate 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together.", the bench comprising Justices AM Khanwilkar, Indu Malhotra and Ajay Rastogi observed.

The court observed that the rigid interpretation of the provision would be violative of the dictum laid down by the Constitution bench in K. Krishna Murthy (Dr.) & Ors. v. Union of India 2010) 7 SCC 202 that the State legislations providing for reservation of seats in respect of OBCs, it must ensure that in no case the aggregate vertical reservation in respect of SCs/STs/OBCs taken together should exceed 50 per cent of the seats in the concerned local bodies.

4. Dying Declaration Cannot Be Discarded Merely Because Relatives Of Deceased Were Present In Hospital While Recording It: Supreme Court

Case: Satpal vs State of Haryana [CRA 261 OF 2021]

Citation: LL 2021 SC

Bench comprising of Justices Ashok Bhushan and R. Subhash Reddy observed that a dying declaration cannot be disbelieved merely because parents and relatives of the deceased were present in the hospital while recording it.

"It is quite natural that when such an incident happens, the parents and other relatives try to reach the hospital immediately. Merely because they were in the hospital, the same is no ground to disbelieve the dying declaration, recorded by the Magistrate", the bench said while dismissing the appeal filed by a murder accused.

In the declaration, recorded by the Judicial Magistrate, the deceased stated that the accused has poured kerosene oil and set her ablaze. Challenging the concurrent conviction, the accused before the apex court contended that the dying declaration was tutored one and the same was made at the instance of family members of the deceased, who were there with the deceased in hospital at the relevant time. According to his version, the deceased made attempt to commit suicide, and he tried his best to extinguish the fire.

5. Evidence Of Interested Person Can Be Considered If It Is Corroborated: Supreme Court

Case: Rahul vs. State of Haryana [CRA 262 OF 2021]

Citation: LL 2021 SC 130

Bench comprising of Justices Ashok Bhushan and R. Subhash Reddy observed that the evidence of interested person can be considered provided such evidence is corroborated by other evidence on record.

In this case, the accused was concurrently convicted in a murder case. The prosecution case was that the accused had murdered the deceased because of the alleged relationship between his wife and the deceased. Before the Apex Court in appeal, he contended that two witnesses in this case, are brother and mother respectively of the deceased, and thus are interested witnesses and the conviction is based on the testimony of these interested witnesses, to prove that deceased was last seen with the accused. Opposing this contention, the state contended that merely because witnesses who are brother and mother of the deceased were examined to prove the case of the prosecution, same is no ground to discard their testimony, if the same is corroborated along with other oral and documentary evidence on record.

6. 'Systemic Fraud Or Irregularities Make Entire Selection Process Illegitimate': SC Upholds Cancellation Of Examination By Delhi Subordinate Services Selection Board

Case: Sachin Kumar vs. Delhi Subordinate Service Selection Board [Civil Appeal Nos 639-640 of 2021]

Citation: LL 2021 SC 128

Bench comprising of Justices DY Chandrachud and MR Shah observed that DSSSB and GNCTD must now take adequate measures to ensure against the recurrence of such instances which erode the credibility of and public confidence in the recruitment process. We direct that a comprehensive exercise to re-visit the modalities and safeguards be carried out within a period of two months to ensure that the probity of the recruitment process in future is maintained.

"Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few who may not specifically be found to be involved in wrong-doing. But that is not sufficient to nullify the ultimate decision to cancel an examination where the nature of the wrong-doing cuts through the entire process so as to seriously impinge upon the legitimacy of the examinations which have been held for recruitment." The Bench observed while allowing the appeals filed by Delhi Government and DSSSB challenging the decision of the High Court affirming the orders of the Central Administrative Tribunal which had set aside the annulment of the recruitment process.

7. Limitation Period For Filing 'Section 34' Petition Commences From Date Of Receipt Of Signed Copy Of Arbitral Award By Parties: Supreme Court

Case: Dakshin Haryana Bijli Vitran Nigam Ltd. vs. M/S Navigant Technologies Pvt. Ltd. [CA 791 OF 2021]

Citation: LL 2021 SC 126

The bench comprising Justices Indu Malhotra and Ajay Rastogi observed that the period of limitation for filing the Petition under Section 34 of the Arbitration and Conciliation Act would commence from the date on which the signed copy of the award was made available to the parties

In this case, a Petition was filed under Section 34 by Bijli Vitrain Nigam to challenge the arbitral award dated 27.04.2018 passed by a three-member tribunal (2:1) in favour of Navigant Technologies Pvt. Ltd. This petition was dismissed by the Civil Court on the ground that the copy of the majority award i.e. signed by two of the three arbitrators was received on 27.04.2018, and u/S. 34(3), the objections had to be filed within 3 months, which would expire on 27.07.2018. Even if the benefit of 30 days had been granted to the applicants, the petition ought to have been filed by 26.08.2018, whereas the objections had been filed on 10.09.2018, the court had held. The High Court affirmed this order.

8. Proceedings Under Section 34 Of Arbitration Act Also Covered By Moratorium Under Section 14 IBC: Supreme Court

Case Title :P Mohanraj and others v M/s Shah Brothers Ispat Ltd and connected cases

Citation : LL 2021 SC 120

Bench comprising of Justices RF Nariman, Navin Sinha and KM Joseph observed that an application under Section 34 of the Arbitration and Conciliation Act to set aside an award is covered by moratorium under Section 14 of the Insolvency and Bankruptcy Code.

Section 34 proceeding is a proceeding against the corporate debtor in a court of law pertaining to a challenge to an arbitral award and would be covered just as an appellate proceeding in a decree from a suit would be covered, the bench headed by Justice RF Nariman observed in the judgment titled P Mohanraj and others v M/s Shah Brothers Ispat Ltd.

9. Moratorium Under Section 14 IBC Covers Section 138 NI Act Proceedings Against Corporate Debtor For Cheque Dishonour : Supreme Court

Case Title :P Mohanraj and others v M/s Shah Brothers Ispat Ltd and connected cases

Citation : LL 2021 SC 120

A bench comprising Justices RF Nariman, Navin Sinha and KM Joseph held that the declaration of moratorium under Section 14 of the Insolvency and Bankruptcy Code(IBC) covers criminal proceedings for dishonour of cheque under Section 138 of the Negotiable Instruments Act against the corporate debtor.

"We hold that a Section 138/141 NI Act proceeding against a corporate debtor is covered by Section 14(1)(a) of the IBC", the bench held.

The judgment came in a batch of petitions(P Mohanraj and others v M/s Shah Brothers Ispat Ltd and connected cases) which challenged the continuation of criminal trial under Section 138 NI Act during the pendency of liquidation proceedings in the National Company Law Tribunal(NCLT).

10. Non-Explanation By Accused In Section 313 CrPC Statement Cannot Be Used As A Link To Complete Chain Of Circumstances: Supreme Court

Case: Shivaji Chintappa Patil vs. State Of Maharashtra [ Cr. A. 1348 of 2013]

Citation: LL 2021 SC 125

The Supreme Court observed that false explanation or non-explanation of the accused to the questions posed by the court under Section 313 of the Code of Criminal Procedure, cannot be used as a link to complete the chain.

It can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused, the bench comprising Justices RF Nariman and BR Gavai observed.

11. Writ Jurisdiction Under Article 226 Can Be Invoked To Quash FIR If It Is Found To Be Abuse Of Process Of Law: Supreme Court

Case: Kapil Agarwal vs. Sanjay Sharma [Cr. A 142 OF 2021]

Citation: LL 2021 SC 123

The Supreme Court observed that a High Court, invoking its powers under Article 226 of the Constitution of India, can quash an FIR if the same is found to be an abuse of process of law.

In this case, a writ petition preferred by the accused for quashing the first information report registered under under Sections 420/406 of the Indian Penal Code against them was dismissed by the Allahabad High Court. The accused's contention was that the FIR against him is a counterblast to the cheque bounce complaint filed against the complainant.

While allowing the appeal, the bench comprising Justices DY Chandrachud and MR Shah observed that the inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment.

12. Insolvency Proceedings Maintainable Even If Winding Up Petition Is Pending Against Corporate Debtor: Supreme Court

Case: Asha John Divianathan vs. Vikram Malhotra [CA 9546 OF 2010]

Citation: LL 2021 SC 119

The Supreme Court held that a petition either under Section 7 or Section 9 of the Insolvency and Bankruptcy Code is an independent proceeding which is unaffected by winding up proceedings that may be filed against the same company.

The bench comprising Justices RF Nariman and BR Gavai observed that a secured creditor stands outside the winding up and can realise its security de hors winding up proceedings.

In this appeal, the appellant's contention was that post admission of a winding up petition, no petition under Section 7 of the IBC can be filed. According to it, the effect of Section 446 of the Companies Act, 1956 (which is equivalent to Section 279 of the Companies Act, 2013) is that no suit or other legal proceeding can be initiated once there is admission of a winding up petition.

13. Residential Accommodation For Nuns & Hostels For Students Can Claim Property Tax Exemption U/s 3(1)(b) of the Kerala Building Tax Act: Supreme Court

CASE: GOVERNMENT OF KERALA vs. MOTHER SUPERIOR ADORATION CONVENT [CIVIL APPEAL NO. 202 OF 2012]

CITATION: LL 2021 SC 121

The Supreme Court held that residential accommodation for nuns and hostel accommodations for students which are attached to various educational institutions can claim property tax exemption under Section 3(1)(b) of the Kerala Building Tax Act, 1975.

"If nuns are living in a neighbouring building to a convent only so that they may receive religious instruction there, or if students are living in a hostel close to the school or college in which they are imparted instruction, it is obvious that the purpose of such residence is not to earn profit but residence that is integrally connected with religious or educational activity.", the bench headed by Justice Rohinton Fali Nariman observed while upholding a full bench judgment of the Kerala High Court.

14. Contract Is Void If Prohibited By Statute Under A Penalty Even If It Does Not Expressly Declare It Void: Supreme Court

Case: Asha John Divianathan vs. Vikram Malhotra [CA 9546 OF 2010]

Citation: LL 2021 SC 119

The Supreme Court observed that a contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void.

The bench comprising Justices AM Khanwilkar, Indu Malhotra and Ajay Rastogi observed that the condition predicated in Section 31 of the Foreign Exchange Regulation Act, 1973, of obtaining "previous" general or special permission of the Reserve Bank of India for transfer or disposal of immovable property situated in India by sale or mortgage by a person, who is not a citizen of India, is mandatory. The bench clarified that the transactions which have already become final including by virtue of the decision of the court of competent jurisdiction, need not be reopened or disturbed in any manner because of this pronouncement.

IMPORTANT APEX COURT UPDATES

1. 'Tandav' Row : Supreme Court Grants Interim Protection From Arrest To Amazon Prime Video Head Aparna Purohit

The Supreme Court this week granted interim protection from arrest to Amazon Prime Video's India head Aparna Purohit in the FIR registered by UP Police over alleged hurting of religious sentiments by the web series 'Tandav'.

A bench comprising Justices Ashok Bhushan and R Subhash Reddy observed that the protection from arrest will be subject to the petitioner cooperating with the investigation and appearing before the police as and when summoned.

The bench passed this interim order while issuing notice on Purohit's petition challenging the refusal of pre-arrest bail by the Allahabad High Court. The bench took note of the submission made on behalf of the petitioner that she is cooperating with another FIR registered in Lucknow, and that she had no role in the writing or the production of the series.

2. Supreme Court Reserves Judgement In UP Govt's Plea Seeking Transfer Of BSP MLA Mukhtar Ansari From Ropar Jail To UP's Ghazipur Jail

"Article 32 is the heart and soul of our Constitution", submitted Senior Advocate Dushyant Dave, appearing on behalf of State of Punjab and Jail Superintendent, to the Supreme Court in Uttar Pradesh Government's plea seeking transfer of BSP MLA Mukhtar Ansari from Ropar Jail in Punjab to Uttar Pradesh's Ghazipur Jail.

Dave, arguing before the Bench headed by Justice Ashok Bhushan, opposed the maintainability of the UP Government's plea filed under Article 32. He was joined in on this contention by Senior Advocate Mukul Rohatgi who appeared for Mukhtar Ansari. After the conclusion of the arguments, the Apex Court proceeded to reserve the judgement in the matter.

Also Read : "Can Kerala Govt Seek Transfer Of Siddique Kappan From UP, A State Can't Invoke Art 32 Against Another State":Dushyant Dave Tells SC In Mukhtar Ansari Case

3. "Remark Smacks Of Very Patriarchal Way Of Looking At Things": Justice Deepak Gupta On CJI Asking Rape Accused If He Would Marry Victim

"Unfortunately, the remark smacks of a very patriarchal way of looking at things, it was gender insensitive", said Justice Deepak Gupta in context of CJI S. A. Bobde asking a 23-year old man, who stands accused of raping a minor girl when she was aged around 16 years, whether he will marry her.

The retired Supreme Court judge was expressing his opinion in an interview with veteran journalist Barkha Dutt over the much-talked about episode from Monday when a bench headed by the Chief Justice of India was hearing a special leave petition filed by the man, who is now a government servant in Maharashtra, against an order of the Bombay High Court which cancelled his anticipatory bail.

4. Supreme Court Refuses To Entertain Plea By A Lady Civil Judge From Uttarakhand Against Termination , Directs To Approach The High Court

Supreme Court has refused to entertain plea against dismissal of a lady Civil Judge from service in Uttarakhand for allegedly holding a minor girl captive at her residence and mistreating her.

A three-judge Bench of CJI Bobde, Justice Bopanna and Justice Ramasubramanian has given the petitioner the liberty to withdraw and approach the High Court.

The plea sought directions to the Uttarakhand government and High Court to reinstate the Petitioner with all consequential benefits including promotion as Additional District Judge with effect from 23rd February 2018.

5. Permanent Commission- "How Do You Ignore Those Women Who Are Not Considered In The Past, Are Now Not Being Granted PC Citing Bodily Impairments": SC Asks Centre

A division Bench of the Supreme Court comprising of Justice DY Chandrachud and Justice MR Shah heard a batch of pleas filed by women Army officers seeking grant of permanent commission and related benefits. The Court will continue hearing the matter again on Thursday, March 4th.

Senior Advocate Balasubramaniam appearing for the Defence Ministry explained the Court about the medical categories based on which officers are assessed for grant of permanent commission. He stated there are 5 medical categories SHAPE, which is an acronym, where S stands for psychiatric, H for hearing, A for appendages, P is for physical and E is for eye sight. While Shape 1 is the fittest, Shape 5 is on other end of spectrum and means the officer is unfit for any duty and will have to be released from duty.

6. Senior Citizens To Be Given Seniority In Both Private And Government Hospitals : Supreme Court

Supreme Court has directed the States to ensure that priority is accorded to senior citizens in hospitals, in a plea filed by former Union Minister Dr. Ashwani Kumar which sought for the protection of rights of the elderly.

A division Bench of Justice Ashok Bhushan and Justice Subhash Reddy has directed that elderly people are to be given priority in admissions at private hospitals besides at government medical institutions amid the COVID-19 pandemic, in modification to its previous order that was applicable only to government hospitals.

7. [Ward Reservations in Goa Municipal Councils] Supreme Court Stays Bombay HC Judgment And SEC's New Notification

The Supreme Court this week stayed the Bombay High Court judgment setting aside a notification issued by the Director and ex-officio Additional Secretary (Municipal Administration)/ Urban Development, Goa reserving wards in Goa Municipal Councils.

A Bench of Justice Rohinton Fali Nariman and Justice Hrishikesh Roy also stayed the new notification issued by Goa Election Commission pursuant to Judgment.

8. Supreme Court Takes Note Of Prison Management Software Developed By Techie After Jail Term

The Supreme Court has suggested exploring the feasibility of adopting on a country wide basis the 'prison software' developed by a software engineer who himself served 13 months in jail.

Amit Mishra, a software engineer, served 13 months in Bhondsi jail before he was acquitted in 2014. He was accused in a case in relation to his wife's suicide. In June 2015, he founded a company 'Invader Technologies'. Taking note of the situation he himself witnessed in the prison, he focused on developing a Prison/Prisoner Information Management Software named Phoenix.

9. PIL In Supreme Court Seeks Establishment Of Transgender Welfare Board, Standing Committee To Investigate Gross Abuse Against Trans Persons By Police

A PIL has been filed before the Supreme Court seeking establishment of the Transgender Welfare Board to address social welfare issues of a trans person and to appoint a Standing Committee in order to investigate reports of abuse against trans person by the police.

Drafted by Advocate CR Jaya Sukin and filed by Advocate Narender Kumar Verma, the plea highlights the suffering and harassment that trans people have to go through in matters of housing, health, education and employment, thereby depriving them of social and cultural participation.

10. Whether Day Of Remand Is To Be Included For Considering A Claim For Default Bail? Supreme Court Refers To Larger Bench

Whether the day of remand is to be included or excluded, for considering a claim for default bail ? The Supreme Court referred this issue to a larger bench.

The Court was considering the appeal filed against the Bombay High Court judgment which held that the day of remand has to be included for the purpose of computing the period of 90 days or 60 days as contemplated in Section 167 (2)(a)(ii) of the Code of Criminal Procedure. The Bombay High Court had observed thus while granting bail to DHFL promoters Kapil Wadhwan and Dheeraj Wadhwan in the Enforcement Directorate's case of money laundering registered against them as the agency failed to file a chargesheet within 60 days from the date of remand.