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Supreme Court Judgments Weekly Round-Up [October 31 to November 6]
LIVELAW NEWS NETWORK
6 Nov 2022 3:50 PM IST
![Supreme Court Judgments Weekly Round-Up [October 31 to November 6]](https://www.livelaw.in/h-upload/2022/08/16/750x450_430689-supreme-court-weekly-round-up-sc.jpg "Supreme Court Judgments Weekly Round-Up [October 31 to November 6]")
JUDGMENTS THIS WEEKSupreme Court Bans Two-Finger Test; Says It's Based On Patriarchal Mindset That Sexually Active Women Can't Be RapedThe Supreme Court on Monday prohibited "Two-Finger Test" in rape cases and warned that persons conducting such tests will be held guilty of misconduct. It is regrettable that "two-finger test" continues to be conducted even today, a bench comprising Justices...
JUDGMENTS THIS WEEK
The Supreme Court on Monday prohibited "Two-Finger Test" in rape cases and warned that persons conducting such tests will be held guilty of misconduct. It is regrettable that "two-finger test" continues to be conducted even today, a bench comprising Justices DY Chandrachud and Hima Kohli lamented while restoring the conviction in a rape case.
"This court has time and again deprecated the use of two finger test in cases alleging rape and sexual assault. The so called test has no scientific basis. It instead re-victimises and re-traumatises women. The two finger test must not be conducted....The test is based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth", the bench observed while pronouncing the judgment.
The Supreme Court observed that dying declaration does not become inadmissible merely because it was recorded by police personnel.
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 bench of Justices DY Chandrachud and Hima Kohli said.
The court added that 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 Supreme Court observed that the Railway employees working in different Zones/Divisions are required to be treated similarly and equally and are entitled to similar benefits and are entitled to the same treatment.
The bench of Justices MR Shah and BV Nagarathna observed that Commission Vendors/bearers working in the Northern Railway are entitled to have 50% of their services rendered prior to their regularization to be counted for pensionary benefits.
The Supreme Court observed that, while computing motor accident compensation, the multiplier of victims upto the age group of 15 years should be taken as '15'.
There is certainly justification for selecting a lower multiplier of '15' in the case of victims belonging to the age group upto 15 years, the bench of Justices BR Gavai and CT Ravikumar observed.
The Supreme Court observed that reference made to the Facilitation Council is maintainable in spite of an independent arbitration agreement existing between the parties to whom the Micro, Small and Medium Enterprises Development Act, 2006 is applicable.
The Facilitation Council, which had initiated the Conciliation proceedings under Section 18(2) of the MSMED Act, 2006 would be entitled to act as an arbitrator despite the bar contained in Section 80 of the Arbitration Act, the bench of CJI UU Lalit and Justice Bela M. Trivedi observed.
The Supreme Court observed that the Standing Committee of a Municipal Corporation in Maharashtra will be dissolved along with the completion of the term of the Corporation.
"The end of the tenure of Corporation has its consequential effect of the end of the term of the office of the Councillor; and when no person could be said to be holding the office of Councillor after end of the term of the Corporation, existence of any Standing Committee thereafter, is simply out of question", the bench of Justices Dinesh Maheshwari and JK Maheshwari observed.
The Supreme Court set aside a Madras High Court judgment which quashed PMLA proceedings initiated against a 'bribe giver'.
"By handing over money with the intent of giving bribe, such person will be assisting or will knowingly be a party to an activity connected with the proceeds of crime. Without such active participation on part of the person concerned, the money would not assume the character of being proceeds of crime. The relevant expressions from Section 3 of the PML Act are thus wide enough to cover the role played by such person.", the bench of CJI UU Lalit and Justice Bela M. Trivedi observed.
The Supreme Court observed that a party who was not 'supplier' on the date of entering into contract cannot seek any benefit as the 'supplier' under the MSMED Act, 2006
If any registration is obtained subsequently the same would have an effect prospectively and would apply to the supply of goods and rendering services subsequent to the registration, the bench of CJI UU Lalit and Justice Bela M. Trivedi observed.
Discretionary & Extraordinary Power U/Sec 319 CrPC Should Be Exercised Sparingly : Supreme Court
The Supreme Court reiterated that the power of a court under Section 319 CrPC is a discretionary and extraordinary power which should be excercised sparingly.
The crucial test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction, the bench of Justices Ajay Rastogi and CT Ravikumar said.
Supreme Court Urges Centre & States To Consider Publication Of Laws In All Regional Languages
The Supreme Court of India on Tuesday directed the central and state governments to consider a plea to publish all legislations in regional languages to ensure better access for the people whose "conduct and day-to-day lives" would be governed by these legislations. However, the Bench, comprising Chief Justice U.U. Lalit and Justice Bela M. Trivedi, refused to entertain a prayer seeking the publication of the draft legislations before their introduction to enhance transparency and public participation.
POCSO Act - Non-Reporting Of Sexual Assault Despite Knowledge Is A Serious Crime : Supreme Court
The Supreme Court observed that non-reporting of sexual assault against a minor child despite knowledge is a serious crime.
More often than not, it is an attempt to shield the offenders of the crime of sexual assault, the bench of Justices Ajay Rastogi and CT Ravikumar said while setting aside the Bombay High Court order that quashed criminal proceedings against a medical practitioner who was accused of offence of not reporting POCSO.
The Supreme Court reiterated that a rape victim's statement made under Section 164 CrPC should not be disclosed to any person including the accused till charge-sheet/final report is filed.
The bench of CJI UU Lalit and Justice Bela M. Trivedi was considering a contempt petition which highlighted violation of mandatory directions issued in State of Karnataka by Nonavinakere Police vs. Shivanna alias Tarkari Shivanna – (2014) 8 SCC 913 and A vs. State of Uttar Pradesh – (2020) 10 SCC 505
The Supreme Court on Thursday affirmed the death penalty awarded to Lakshar-e-Toiba militant Mohammed Arif for the 2000 Red Fort Attack case which resulted in the death of three persons including two army officers. The Court dismissed the review petition filed by him challenging his conviction and sentence.
When there is challenge to the unity, integrity and sovereignty of India by acts of terrorism, such acts are taken as the most aggravating circumstances, the bench comprising Chief Justice UU Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi observed. The court added that this factor completely outweigh the factors which may even remotely be brought into consideration as mitigating circumstances on record.
The Supreme Court bench comprising of Justices MR Shah and MM Sundresh observed that a petition to set aside arbitration award is maintainable before a High Court only when it possesses original civil jurisdiction.
In this case, a petition under Section 34 of the Arbitration and Conciliation Act was filed before the concerned District Court. This petition was held to be not maintainable, on the ground that the order of appointment of arbitrator under section 11(6) was a judicial order and section 42 required the appeal to be filed in the Court wherein that application was made. The Orissa High Court allowed the appeal against this order and restored the petition before the District Court.
The Supreme Court observed that mere non-supply of documents to deliquent employee cannot be a ground to set aside disciplinary proceedings.
"Mere non-supply of the documents which may not have resulted any prejudice caused to the employee, the order passed by the disciplinary authority cannot be set aside", the bench of Justices MR Shah and Krishna Murari observed.
In this case, the High Court of Punjab and Haryana at Chandigarh allowed the second appeal preferred by the employee and set aside the punishment imposed by the disciplinary authority on the ground that some documents were not supplied to the delinquent.
The Supreme Court observed that skull superimposition technique for idenitification of the dead body cannot be regarded as infallible.
When the super-imposition report is not supported by any other reliable medical evidence like a DNA report or post-mortem report, it would be very risky to convict the accused believing the identification of the dead body of the victim through the super-imposition test, the bench of CJI UU Lalit and Bela M. Trivedi observed.
In a crucial judgment, the Supreme Court held the provisions of the Employees Pension (Amendment) Scheme 2014 to be legal and valid. However, so far as the present members of the fund are concerned, the Court has read down certain provisions of the scheme.
While allowing the appeals filed by the Employees Provident Fund Organization and the Union Government challenging the Kerala, Rajasthan and Delhi High Court judgments which had quashed the Employee's Pension (Amendment) Scheme, 2014, the Court read down certain provisions of the scheme.
The Supreme Court has sentenced an Kenyan Citizen of Indian Origin to six months simple imprisonment finding him guilty of contempt of court.
Perry Kansangra has deliberately and with a clear intention committed egregious acts of contempt, the bench of CJI UU Lalit and Justice PS Narasimha said.
In a judgment delivered in 2020, the Supreme Court, in a child custody matter, held that the father Perry Kansangra was entitled to the custody of the child. A condition was also imposed that he should obtain a "mirror order" from the corresponding Kenyan court within two weeks to take the child to Kenya. Later, the mother Smriti Kansagra filed an application stating that the father got custody by allegedly giving a forged or wrong mirror order from the Kenyan High Court. It was also alleged that he not only refused to obey the directions granting visitation or meeting rights to the mother but also moved the Kenyan court for declaration of invalidity of Indian jurisdiction.
The Supreme Court observed that the income tax returns may not be an accurate guide of the real income of parties engaged in a matrimonial conflict.
Family Court has to determine the real income on a holistic assessment of the evidence before it, the bench of Justices DY Chandrachud and Hima Kohli said.
In this case, the Family Court ordered a Husband to pay maintenance at the rate of Rs 20,000 per month to his wife and Rs 15,000 each to their daughters. This was based on a finding that he is earning Rs. 2 lacs as monthly income. While considering the revision petition filed by the Husband, the High Court noticed as per the Income Tax Return (I.T.R.) filed by thim he is only earning Rs. 4.5 lacs per annum. It was further observed that the Family Court had not indicated the basis on which it had assessed his income at Rs Two Lakhs per month
Borrower Cannot Claim Extension Of Time Period Under OTS Scheme As A Matter Of Right : Supreme Court
The Supreme Court observed that a borrower cannot claim extension of time period under One Time Settlement Scheme as a matter of right.
The bench of Justices MR Shah and Krishna Murari observed said that a High Court cannot invoke writ jurisdiction to extend the time period under the OTS scheme. Directing the Bank to reschedule the payment under OTS would tantamount to modification of the contract, it added.
The Supreme Court bench comprising of CJI UU Lalit, S. Ravindra Bhat and PS Narasimha commuted death sentence of a murder accused taking into account his illegal solitary confinement for about ten years.
BA Umesh alias Umesh Reddy, an ex-cop, was sentenced to death in a rape and murder case by a Sessions Court in Bengaluru upon being convicted in the year 2006. He was found guilty of rape and murder of a house wife. Later, the Supreme Court upheld the death sentence awarded to him in year 2011. The mercy petition was rejected by the President of India and challenging the same he approached the Karnataka High Court. As the writ petition filed by him got dismissed, he approached the Apex Court.
The Supreme Court disapproved the practice of High Courts of calling for the answer scripts/sheets to order revaluation.
The bench of Justices MR Shah and MM Sundresh reiterated that re-evaluation cannot be ordered if the regulations does not provide for the same. Sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet, the bench said.
Almost thirty years after the communal riots which rocked Bombay in 1992-93 after the demolition of Babri Masjid, the Supreme Court on Friday issued a slew of directions for payment of compensation to the families of victims and for revival of criminal cases which are lying dormant.
The Court observed that there was a failure on the part of the State Government to maintain law and order and to protect the rights of the people guaranteed under Article 21 of the Constitution of India.
In a significant judgment impacting lakhs of workers across the country, the Supreme Court on Friday upheld the Employees' Pension (Amendment) Scheme 2014, which, among other things, capped the maximum salary for joining the EPF Pension Scheme as Rs 15,000 per month with effect from September 1, 2014.
However, the Court has allowed an additional window of four months period for those who were members of the scheme before the 2014 amendment and whose salaries exceed the threshold introduced in 2014 to join the scheme by exercising the higher option. As per the 2014 amendment, members whose monthly salary exceeded Rs.15,000/- had to exercise a fresh option to join the scheme within a period of six months from September 1, 2014. Also, such employees had to make an additional contribution at the rate of 1.16 per cent on salary exceeding fifteen thousand rupees. This condition for additional contribution has also been invalidated by the Court on the ground that it is ultra vires the Employees Provident Fund and Miscellaneous Provisions Act 1952.
The Supreme Court upheld States' power to impose entry tax from Industrial Township/Areas.
The bench of CJI UU Lalit, Justices S. Ravindra Bhat and J B Pardiwala held that industrial townships are 'local area' for the purposes of entry tax.
The court dismissed appeals against filed against (1) Orissa High Court Judgment by OCL India Ltd. and Steel Authority of India Ltd. and (2) the Allahabad High Court judgment by Hindustan Aluminium Company Ltd.
The Supreme Court recently came to relief of several persons who were displaced during 1988 when their lands in Odisha villages were acquired for Mahanadi Coalfields Ltd, a subsidiary of Coal India Ltd.
The bench comprising of Chief Justice of India UU Lalit, Justices S Ravindra Bhat and Bela M Trivedi held that the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 -which introduces more beneficial provisions for compensation and rehabilitation for persons displaced after compulsory land acquisition- will apply to the persons in the four villages whose lands were acquired for the coal fields.
The Supreme Court bench comprising of Justices MR Shah and Krishna Murari reiterated that while considering application under Section 11(6) of the Arbitration and Conciliation Act, the dispute with respect to the arbitrability should be left to the arbitrator, unless on the face it is found that the dispute is not arbitrable.
In this case, the Madras High Court dismissed an application to appoint an arbitrator on the ground that at the time when the application was filed there were already arbitral proceedings pending between the parties and the award was passed and (2) that the proceedings were pending before the NCLT on the allegation of mismanagement and oppression.
The Supreme Court bench of Justices MR Shah and MM Sundresh reiterated that a subsequent purchaser has no right to claim lapse of acquisition proceedings.
In this case, the land in question was notified to be acquired under Section 4 of the Land Acquisition Act, 1894 on 25.11.1980; declaration under Section 6 was issued on 07.06.1985; and award came to be declared by the Collector on 17.06.1987. Before the High Court, the writ petitioner claimed the right, title, or interest in the lands in question on the basis of the Agreement to Sell dated 22.05.2016 and challenged the acquisition. The said writ petition was allowed by the High Court.
The Supreme Court bench comprising of CJI UU Lalit, Justices S. Ravindra Bhat and PS Narasimha observed that a Ballistic Report forwarded by Director/ Deputy Director/ Assistant Director of a lab under the seal can be said to be in compliance with the statutory requirement under Section 293 Cr.P.C.
Section 293 of the Code of Criminal Procedure reads as follows: Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
The Supreme Court bench comprising of Justices MR Shah and MM Sundresh directed the Central Bureau of Investigation [CBI] to investigate the death of a medical student in Mangaluru.
Rohit Radhakrishnan, a Keralite, was a student of A J Institute of Medical Science in Mangalore. His headless body was found near Tannirbhavi on March 23, 2014. The investigation that followed concluded that the death was due to an accident. Strangely, an abated charge-sheet was also filed against deceased for the offence of rash driving and for causing death by negligence under Sections 279, 304A IPC read with Section 185 of the Motor Vehicles Act. His father thus approached the Apex Court seeking a direction for investigation in this matter by the CBI.
The Supreme Court bench comprising of CJI UU Lalit, Justices Ravindra Bhat and Sudhanshu Dhulia has observed that Leave Travel Concession (LTC) is not for foreign travel and is meant for travel 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) of the Income Tax Act.
The court dismissed the appeal filed by State Bank of India against the Delhi High Court judgment which held that the amount received by the SBI employees towards their LTC claims is not liable for the exemption as these employees had visited foreign. The Revenue had held SBI to be an "assessee in default", for not deducting the tax at source of its employees.
Supreme Court bench comprising Chief Justice UU Lalit and Justice Bela M Trivedi has made it clear that the Chief Editor cannot be prosecuted for defamation in the absence of 'specific allegations'.
The presumption under Section 7 of the Press and Registration of Books Act, 1867 cannot be invoked against such Chief Editor or Editor-in-Chief, if there are no specific and sufficient allegations, it held.
