Supreme Court Monthly Digest: April 2021 [Citation LL 2021 SC 193 to LL 2021 SC 239]

[Case: State Of Rajasthan v. Love Kush Meena; Citation: LL 2021 SC 193]

A Division Bench of Justices Sanjay Kishan Kaul and R. Subhash Reddy reiterated that acquittal based on a benefit of doubt in respect of a heinous or serious nature of crime cannot make the candidate eligible for public employment.

In this case, Love Kush Meena cleared the recruitment of constable in Rajasthan Police Service. However, he was not appointed in view of being tried in a criminal case. It was found that, though he was acquitted, the charges against him were not of a trivial nature but were serious offences and the candidate was not acquitted by the Court honourably. Against this denial of appointment, he approached the Rajasthan High Court. The High Court allowed his writ petition observing that since no cogent evidence connecting the accused person to commission of offence was found, he was not disentitled for appointment to the post of a constable, notwithstanding his involvement in a criminal case. The Top Court however allowed State's appeal against such appointment.

2. HC Under Article 226 Should Not Entertain A Dispute Which Is Arbitrable Unless There Is An Issue Of Public Interest: Supreme Court

[Case: Rapid MetroRail Gurgaon Limited v. Haryana Mass Rapid Transport Corporation; Citation: LL 2021 SC 194]

A bench comprising Justices DY Chandrachud, MR Shah and Sanjiv Khanna observed that ordinarily a High Court in its jurisdiction under Article 226 of the Constitution has to decline to entertain a dispute which is arbitrable, unless there is a fundamental issue of public interest.

In this case the High Court had entertained the writ petition even though there was an arbitration clause between the parties. In appeal, the Apex Court noted that the High Court was concerned over a fundamental issue of public interest, which was the hardship that would be caused to commuters who use the rapid metro as a vehicle for mass transport in Gurgaon.

3. Petition Styled As One Under Article 226 Would Not Bar High Court To Exercise Its Jurisdiction Which Otherwise It Possesses: Supreme Court

[Case: Kiran Devi v. Bihar State Sunni Wakf Board; Citation: LL 2021 SC 195]

A bench comprising Justices Ashok Bhushan, S. Abdul Nazeer and Hemant Gupta observed that a petition styled as one under Article 226 would not bar the High Court to exercise its jurisdiction which otherwise it possesses under a Statute and/or under Article 227 of the Constitution.

In this case, the appellant's contention was that the order of the Wakf Tribunal could not be challenged by way of writ petition before the High Court under Article 226 of the Constitution as only a revision in terms of proviso to sub-section (9) of Section 83 of the Wakf Act could be preferred.

The bench noted that sub-section (9) of Section 83 of the Act confers power on the High Court to call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination.

4. Hindu Undivided Family - No Presumption That Business Run By Karta In Tenented Premise Is Joint Family Asset: Supreme Court

[Case: Kiran Devi v. Bihar State Sunni Wakf Board; Citation: LL 2021 SC 195]

Just because a business was run by a karta of a Hindu Undivided Family in a tenented premise, there is no presumption that it is a joint Hindu family business, held a bench comprising of Justices Ashok Bhushan, S Abdul Nazeer and Hemant Gupta. It observed that even if a male member had taken premises on rent, he is tenant in his individual capacity and not as Karta of Hindu Undivided Family in the absence of any evidence.

Referring to a precedent, the Supreme Court held that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family, unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint familyfunds or that the earnings of the business were blended with the joint family estate.

5. Quantity Of Narcotic Substance Recovered Is A Relevant Factor To Impose Punishment Higher Than The Minimum: Supreme Court

[Case: Gurdev Singh v. State of Punjab; Citation: LL 2021 SC 196]

A bench comprising Justices DY Chandrachud and MR Shah observed that quantity of narcotic substance recovered is a relevant factor that can be taken into account for imposing higher than the minimum punishment under the Narcotic Drugs and Psychotropic Substances Act, 1985.

The Court also observed that the Court has a wide discretion to impose the sentence/imprisonment ranging between 10 years to 20 years and while imposing such sentence/imprisonment in addition, the Court may also take into consideration factor as it may deem fit other than the factors enumerated in Section 32B (a) to (f) of the Act.

6. No Automatic Vacation Of Stay Under 3rd Proviso To Section 254(2A) Income Tax Act If Assessee Is Not Responsible For Delay In Hearing Appeal: Supreme Court

[Case: Deputy Commissioner Of Income Tax v. Pepsi Foods Ltd.; Citation: LL 2021 SC 197]

A Bench comprising of Justices BR Gavai and Hrishikesh Roy upheld a Delhi High Court judgment which read down the third proviso to Section 254(2A) of the Income Tax Act, 1961. "Any order of stay shall stand vacated after the expiry of the period or periods mentioned in the Section only if the delay in disposing of the appeal is attributable to the assessee", the bench said.

The court noted that the object sought to be achieved by the third proviso to Section 254(2A) of the Income Tax Act is the speedy disposal of appeals before the Appellate Tribunal in cases in which a stay has been granted in favour of the assessee.

7. Question Of Novation Of Contract Cannot Be Considered In A Petition Under Section 11 Arbitration Act: Supreme Court

[Case: Sanjiv Prakash v. Seema Kukreja; Citation: LL 2021 SC 198]

A bench comprising Justices RF Nariman, BR Gavai and Hrishikesh Roy observed that the question of novation of contract containing an arbitration clause cannot be considered by the Court in a petition filed under Section 11 of the Arbitration and Conciliation Act.

The court said that a Section 11 court would refer the matter when contentions relating to non-arbitrability are plainly arguable, or when facts are contested. The court cannot, at this stage, enter into a mini trial or elaborate review of the facts and law which would usurp the jurisdiction of the arbitral tribunal.

8. 'Frequent & Causal Summoning Of High Officials By Court Cannot Be Appreciated': Supreme Court

[Case: State of UP & Ors. v. Manoj Kumar Sharma; Citation: LL 2021 SC 199]

A Division Bench comprising of Justices Sanjay Kishan Kaul and Hemant Gupta observed that frequent, causal and lackadaisical summoning of high officials by the Court cannot be appreciated. The observation came in a SLP filed by the UP Government against a summoning order passed by the Allahabad High Court in a contempt case.

"Once the order of which contempt was alleged was stayed, there would be no cause for calling the officers as there was no question of any non-compliance of the order which had been stayed. This Court has even on various occasions through judicial pronouncements deprecated the practice of unnecessarily calling officers to Court. In that context, it has been observed that the trust, faith and confidence of the common man in the judiciary cannot be frittered away by unnecessary and unwarranted show or exercise of power," the Bench observed.

9. Quality Of Reasons Matters The Most: Supreme Court Sets Aside Bail Granted To Accused In Dowry Death Case

[Case: Sonu v. Sonu Yadav; Citation: LL 2021 SC 200]

A bench comprising Justices DY Chandrachud and MR Shah that while the reasons may be brief, it is the quality of the reasons which matters the most. The observation came while the bench was setting aside an Allahabad High Court which granted bail to a man accused in a dowry death case.

In this case, after recording the rival submissions, the High Court allowed the bail application, observing thus: "Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of offence, evidence, complicity of accused and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed."

10. Nothing On Record To Even Remotely Suggest That The Act Was Consensual: Supreme Court Upholds Rape Conviction

[Case: Lelu Alias Lain Kumar v. State Of Chhattisgarh; Citation: LL 2021 SC 201]

A Bench of Justices UU Lalit and Indira Banerjee upheld the conviction of a rape accused rejecting his contention that the act was consensual. The court perused the statement made by the prosecuterix. It noted that the prosecuterix had clearly stated that the accused had raped her and she could not raise alarm as her mouth was shut.

In this case, the accused was convicted by the Trial Court under Section 376(1) of the Indian Penal Code and was awarded sentence of rigorous imprisonment for seven years and with fine in the sum of Rs.5000/-, in default whereof to undergo further rigorous imprisonment for a period of one year. His appeal was dismissed by the High Court.

11. 'Right Not To Be Deported' Is Ancillary To A Fundamental Right Available Only To Indian Citizens: Supreme Court In Rohingyas Case

[Case: Mohammad Salimullah v. Union Of India; Citation: LL 2021 SC 202]

While rejecting a plea to stop the deportation of Rohingya refugees detained in Jammu, a bench comprising of then CJI SA Bobde, Justices AS Bopanna and V. Ramasubramanian observed that the right not to be deported is ancillary to the fundamental right to reside or settle in any part of India guaranteed under Article 19(1)(e) of the Constitution.

It thus dismissed an interlocutory application filed seeking (i) the release of the detained Rohingya refugees; and (ii) a direction to the Union of India not to deport them. The Court however clarified that the Rohingyas in Jammu shall not be deported unless the procedure prescribed for such deportation is followed.

12. High Court Under Article 226 And 227 Should Be Extremely Circumspect In Interfering With Orders Passed Under Arbitration Act: Supreme Court

[Case: Navayuga Engineering Company v. Bangalore Metro Rail Corporation Limited; Citation: LL 2021 SC 203]

A bench comprising Justices RF Nariman and BR Gavai reiterated that a High Court while exercising jurisdiction under Article 226 and 227 should be extremely circumspect in interfering with orders passed under the Arbitration and Conciliation Act. The bench held that such interference can be made only in cases of exceptional rarity or cases which are stated to be patently lacking in inherent jurisdiction.

"Despite this Court repeatedly referring to Section 5 of the Arbitration Act in particular and the Arbitration Act in general 2 and despite this Court having laid down in Deep Industries Ltd. v. ONGC & Anr. (2020) 15 SCC 706 that the High Court under Article 226 and 227 should be extremely circumspect in interfering with orders passed under the Arbitration Act, such interference being only in cases of exceptional rarity or cases which are stated to be patently lacking in inherent jurisdiction, we find that High Courts are interfering with deposit orders that have been made. This is not a case of exceptional rarity or of any patent lack of inherent jurisdiction," the bench held.

13. Payment Of Extortion Money Does Not Amount To Terror Funding: Supreme Court Grants Bail To UAPA Accused

[Case: Sudesh Kedia v. Union of India; Citation: LL 2021 SC 204]

Payment of extortion money does not amount to terror funding, a bench comprising Justices L. Nageswara Rao and S. Ravindra Bhat observed while granting bail to an accused arrested under Unlawful Activities (Prevention) Act [UAPA].

In this case, the bail application of Sudesh Kedia was dismissed by the High Court on a finding that he had been paying extortion money, and thus contributed to funding of the terrorist organization. The High Court observed that there is material on record to show that he was in constant touch with the members of the terrorist organization in order to run his business.

The Supreme Court on the other hand observed, "It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the area of operation of the organization. It is alleged in the second supplementary chargesheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization."

14. Compassionate Employment Cannot Be Granted After A Lapse Of Reasonable Period: Supreme Court

[Case: Central Coalfields Limited v. Parden Oraon; Citation: LL 2021 SC 205]

A bench comprising Justices L. Nageswara Rao and S. Ravindra Bhat observed that compassionate employment cannot be granted after a lapse of reasonable period. "Consideration of such employment is not a vested right which can be exercised at any time in the future," it observed.

In this case, the wife of an employee who was missing since 2002 requested the Central Coalfields Ltd. for compassionate appointment of her son. This was rejected on the ground that the employee was already dismissed from service and therefore, the request for compassionate appointment could not be entertained.

15. Escalation Of Prices Cannot Be The Sole Ground To Deny Specific Performance: Supreme Court

[Case: AR Madana Gopal v. Ramnath Publications Pvt. Ltd.; Citation: LL 2021 SC 206]

Escalation of prices cannot be the sole ground to deny specific performance, a bench comprising of Justices L. Nageswara Rao and S. Ravindra Bhat observed. It further said that once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance.

The court was considering appeal against the judgment of Division Bench of Madras High Court which set aside decree for specific performance passed by the Single Judge. It was argued on behalf of the Respondents that the escalation in prices of properties in Chennai and the delay caused by appellants are relevant factors to deny specific performance.

16. Court Cannot Second-Guess Authority's Interpretation Of Tender Unless It Is Arbitrary, Perverse Or Malafide, Reiterates Supreme Court

[Case: M/S Utkal Suppliers v. Maa Kanak Durga Enterprises; Citation: LL 2021 SC 207]

An Authority's interpretation of its own Tender cannot be so second-guessed by a Court unless it is arbitrary, perverse or mala fide, the Supreme Court reiterated. The court noted that the authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted.

"This Court has repeatedly held that judicial review in these matters is equivalent to judicial restraint in these matters. What is reviewed is not the decision itself but the manner in which it was made. The writ court does not have the expertise to correct such decisions by substituting its own decision for the decision of the authority.", the bench comprising of Justices RF Nariman and BR Gavai observed.

17. AP High Court Enquiry Into Justice Eswaraiah's 'Phone Call Conspiracy' Unnecessary: Supreme Court

[Case: Justice V. Eswaraiah (Retd.) v. Union of India & Ors.; Citation: LL 2021 SC 208]

A bench comprising Justices Ashok Bhushan and R Subhash Reddy granted relief to former Andhra Pradesh High Court judge, Justice V. Eswaraiah against an Order of the Andhra Pradesh High Court directing for a judicial inquiry into an alleged phone conversation between him and a District Judge plotting "conspiracy" against the High Court Chief Justice and a sitting Supreme Court Judge.

The Supreme Court noted that the High Court ordered the enquiry against Eswaraiah was ordered while hearing an unconnected PIL related to following of COVID-19 protocols in the High Court. "We are of the view that the High Court ought not to have embarked on any other enquiry in the matter except to the maintainability of the PIL...", the Court observed.

18. Breath Analysis Or Blood Test Not Necessary For Insurer To Reject Claim On Ground Of Drunken Driving : Supreme Court

[Case: IFFCO Tokio General Insurance Company Ltd v. Pearl Beverages Ltd; Citation: LL 2021 SC 209]

A bench comprising Justices UU Lalit, Indira Banerjee and KM Joseph held that a breath analyzer test or blood test as contemplated under the Motor Vehicles Act is not necessary for an insurer to repudiate an accident policy claim on the ground of drunken driving.

The Court held that if the insurance company is able to establish from the facts that the driver was under the influence of alcohol at the time of the accident, it will not be deprived of its right to exclude the policy benefit merely on the ground that the scientific tests for alcohol presence were not carried out.

19. Defence On Merits Is Not To Be Considered At Stage Of Framing Of Charge And/ Or At The Stage Of Discharge Application: Supreme Court

[Case: State of Rajasthan v. Ashok Kumar Kashyap; Citation: LL 2021 SC 210]

A bench of Justices DY Chandrachud and MR Shah observed that defence on merits is not to be considered at the stage of framing of the charge and/or at the stage of discharge application. The Court observed that at the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible.

In this case, the Rajasthan High Court while allowing a revision petition, discharged the accused of the alleged offence under Section 7 of the Prevention of Corruption Act. In appeal before the Supreme Court, the state contended that the High Court has committed a grave error in evaluating the transcript/evidence on merits which at the stage of considering the application for discharge is not permissible.

20. High Courts Shall Not Pass Order Of 'Not To Arrest' Or 'No Coercive Steps' While Dismissing/Disposing Petition U/s 482 CrPC: Supreme Court

[Case: M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra; Citation: LL 2021 SC 211]

A bench comprising Justices DY Chandrachud, MR Shah and Sanjiv Khanna held that a High Court, while dismissing/disposing of the quashing petition under Section 482 CrPC and/or under Article 226 of the Constitution of India, shall not pass order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 CrPC.

It observed that when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 CrPC before the competent court.

21. 2019 Amendment To Section 31 IBC Has Retrospective Operation: Supreme Court

[Case: Ghanashyam Mishra And Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd.; Citation: LL 2021 SC 212]

A bench comprising Justices RF Nariman, BR Gavai and Hrishikesh Roy held that 2019 amendment to Section 31 of the Insolvency and Bankruptcy Code has retrospective operation. The Court observed that the amendment is clarificatory and declaratory in nature and therefore will be effective from the date on which I&B Code has come into effect.

Regarding the retrospectivity of Section 31, the bench observed that the word "other stakeholders" would squarely cover the Central Government, any State Government or any local authorities.

22. Right To Professional Education, Though Not Fundamental Right, Is Not Govt. Largesse; State Has Affirmative Obligation To Facilitate Access At All Levels: SC

[Case: Farzana Batool v. Union of India & Ors.; Citation: LL 2021 SC 213]

A bench of Justices DY Chandrachud and MR Shah observed that the State has an affirmative obligation to facilitate access to education, at all levels. "While the right to pursue higher (professional) education has not been spelt out as a fundamental right in Part III of the Constitution, it bears emphasis that access to professional education is not a governmental largesse. Instead, the State has an affirmative obligation to facilitate access to education, at all levels", it observed.

The Court was considering writ petitions by two students, namely, Farzana Batool and Mohammad Mehdi Waziri for directions to facilitate them to be admitted respectively at the Lady Hardinge Medical College, Delhi and the Maulana Azad Medical College, Delhi in terms of the policy and guidelines issued by the Govt. of India, Ministry of Health & Family Welfare through its Office Memorandum dated 9th April 2020 on allocation of Ladakh Central Pool Seats in MBBS/BDS courses for 2020-21.

23. 'Too Late To Approach Court' : Supreme Court Dismisses Plea Against Dismantling Of 'INS Viraat'

[Case: Envitech Marine Consultants Private Limited v. Union Of India; Citation: LL 2021 SC 214]

A Bench comprising of then CJI SA Bobde, Justices AS Bopanna and V. Ramasubramanian dismissed the SLP filed by a private firm seeking stay on dismantling of decommissioned Indian Navy aircraft carrier 'INS Viraat' and handing it over to them for conversion into a maritime museum.

"We are with you as far as the spirit of nationalism is concerned, but you are already too late in this case. 40% of the ship has been dismantled. We cannot interfere now. Government has already taken a decision," the CJI informed the Petitioner.

24. Balance Sheets Entries Can Amount To Acknowledgement Of Debt U/s 18 Limitation Act: Supreme Court Sets Aside NCLAT Full Bench Ruling

[Case: Asset Reconstruction Company (India) Limited v. Bishal Jaiswal; Citation: LL 2021 SC 215]

A bench comprising of Justices RF Nariman, BR Gavai and Hrishikesh Roy held that entries in balance sheets can amount to acknowledgement of debt for the purpose of extending limitation under Section 18 of the Limitation Act. It referred to an old Calcutta High Court decision in Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff, AIR 1962 Cal 115, the bench observed:

"Importantly, this judgment holds that though the filing of a balance sheet is by compulsion of law, the acknowledgement of a debt is not necessarily so. In fact, it is not uncommon to have an entry in a balance sheet with notes annexed to or forming part of such balance sheet, or in the auditor's report, which must be read along with the balance sheet, indicating that such entry would not amount to an acknowledgement of debt for reasons given in the said note."

25. Functional Convenience Of A Party In Commercial Litigations Cannot Be A Ground To Transfer Case U/s 25 CPC: Supreme Court

[Case: Fumo Chem Pvt. Ltd. v. Raj Process Equipments And Systems Pvt. Ltd.; Citation: LL 2021 SC 216]

The Bench of Justice Aniruddha Bose observed that functional convenience of one of the parties in commercial litigations cannot be a ground to transfer under Section 25 of CPC.
"A petitioner seeking transfer of a case involving business-related disputes from one jurisdiction to another will have to establish some grave difficulty or prejudice in prosecuting or defending the case in a forum otherwise having power to adjudicate the cause," it observed.

In this case, the petitioner company sought transfer of a subsequent suit instituted by the respondents against them in Pune to Ahmedabad. The court noted that the petitioners' case is largely founded on the claim of having approached a judicial forum before the respondents did and both the suits emanate from the same set of facts with the same set of parties.

26. Section 138 NI Act - Magistrates Should Record Reasons Before Converting Summary Trial To Summons Trial: Supreme Court

[Case: In Re Expeditious Trial Of Cases Under Section 138 of N.I Act; Citation: LL 2021 SC 217]

A Constitution Bench of the Supreme Court comprising of then CJI SA Bobde, Justices L Nageswara Rao, BR Gavai, AS Bopanna and S Ravindra Bhat directed that Magistrates have to record reasons before converting trial of complaints under Section 138 of Negotiable Instruments Act from summary trial to summons trial in exercise of power under the second proviso to Section 143 of the Act.

The court noted that such conversion from summary trial to summons trial is being done mechanically without reasons being recorded and the same is contributing to the delay in disposal of the cases.

Also Read: 'Amend Section 138 NI Act To Allow One Trial For Multiple Cases From Single Transaction' : Supreme Court Issues Directions For Expeditious Trial Of Cheque Cases

27. Private Vehicle Is Not A "Public Place" As Explained In Section 43 NDPS Act: Supreme Court

[Case: Boota Singh v. State Of Haryana; Citation: LL 2021 SC 218]

A bench comprising Justices UU Lalit and KM Joseph observed that a private vehicle would not come within the expression "public place" as explained in Section 43 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The bench also observed that total non-compliance of Section 42 is impermissible though its rigor may get lessened in certain situations.

In this case, recovery was effected from the accused while they were sitting on road in a jeep at a public place. While upholding the conviction of the accused, the High Court held that the case of accused would be covered by Section 43 of NDPS Act and not by Section 42. Section 42 deals with Power of entry, search, seizure and arrest without warrant or authorisation while Section 43 with power of seizure and arrest in public place.

28. Supreme Court Hands Over Gokarna Mahabaleshwar Temple Management To Committee Headed By Former SC Judge Justice BN Srikrishna

[Case: Ramchandrapura Math v. Sri Samsthana Mahabaleshwara Devaru & Ors; Citation : LL 2021 SC 219]

A three-judge Bench of then CJI SA Bobde, Justice Bopanna and Justice Ramasubramanian handed over the management of Gokarna Mahabaleshwar temple to an oversight committee headed by former Supreme Court judge Justice BN Srikrishna. It said that in modification of all the interim orders passed by the Supreme Court earlier, the Gokarna Mahabaleshwar temple shall function under the oversight committee headed by Justice BN Srikrishna.

The Court passed the interim order in an appeal filed challenging Karnataka High Court's judgment of 2018 which quashed the Government's order handing over management of Mahabaleshwar temple at Gokarna to Ramchandrapura Math.

29. Supreme Court Forms Committee To Study Feasibility Of Under Grounding Of Over Head Power Lines To Protect Great Indian Bustard

[Case: MK Ranjith Singh & Ors. v. Union of India; Citation: LL 2021 SC 220]

A bench comprising of then CI SA Bobde, Justices AS Bopanna and V Ramasubramanian passed directions regarding the under-grounding of overhead electric lines in Rajasthan and Gujarat in order to protect Great Indian Bustard from extinction.

A High Level Committee has been constituted to examine the feasibility of under-grounding of over-head power lines. The Court has ordered that the recommendations of the committee shall be implemented by power-generators and other stake-holders.

30. Consent Of Parties Cannot Obviate Duty Of Court To Indicate Its Reasons For Granting Or Refusing Bail: Supreme Court

[Case: Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana Makwana (Koli); Citation: LL 2021 SC 221]

A bench comprising Justices DY Chandrachud and MR Shah observed that consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail.

The observation came while setting aside the orders of the High Court of Gujarat granting bail, under Section 439 of CrPC, to six murder accused who were arrested for their alleged involvement in five homicidal deaths. In the order granting bail, the High Court recorded that 'Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order'.

31. GST - Provisional Attachment Power 'Draconian'; Not Intended To Authorize Commissioners To Make Preemptive Strikes On Assessee's Property: Supreme Court

[Case: Radha Krishan Industries v. State of Himachal Pradesh; Citation: LL 2021 SC 222]

A Bench comprising of Justices DY Chandrachud and MR Shah held that the power of provisional attachment under GST laws must be strictly construed, being a draconian power, and that the same should be exercised only on the basis of tangible material. The bench held that the exercise of the power for ordering a provisional attachment must be preceded by the formation of an opinion by the Commissioner that it is necessary so to do for the purpose of protecting the interest of the government revenue.

The power to order a provisional attachment of the property of the taxable person including a bank account is draconian in nature and the conditions which are prescribed by the statute for a valid exercise of the power must be strictly fulfilled, it observed while interpreting Section 83 of the Himachal Pradesh Goods and Service Tax Act.

32. 'High Courts Are In A Crisis Situation': Supreme Court Lays Down Time Line For Appointment Of High Court Judges

[Case: PLR Projects Ltd v. Mahanadi Coalfields Pvt Ltd; Citation: LL 2021 SC 223]

Expressing grave concerns at the mounting vacancies of High Court judges, a bench comprising of then CJI SA Bobde, Justices Sanjay Kishan Kaul and Surya Kant emphasized that the Central Government should proceed to make appointments immediately after the Supreme Court Collegium has cleared the names.

If the Government has any reservation over the Collegium recommendations, it should send back the names with specific reasons for reservations. Once the Supreme Court Collegium reiterates the names, the Centre should make the appointment within 3-4 weeks of such reiteration.

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33. Supreme Court Asks High Courts To Adopt Draft Rules Of Criminal Practice Within 6 Months

[Case: In Re To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trial v. State of Andhra Pradesh; Citation: LL 2021 SC 224]

A bench comprising of then CJI SA Bobde, Justices L Nageswara Rao and S Ravindra Bhat directed the High Courts to adopt the draft rules of criminal practice, which has been prepared by amici curiae Senior Advocates R Basant, Sidharth Luthra and Advocate K Paremshwar, within a period of 6 months.

The High Courts shall take expeditious steps to adopt the said draft rules and ensure that existing rules are suitably modified within a period of 6 months, the Supreme Court ordered. If the state government's co-operation is necessary in this regard, the approval of the concerned department or departments, and the formal notification of the said Draft Rules, shall be made within the said period of six months, it said.

34. 'Ad-Hoc Judges Not An Alternative To Regular Appointments': Supreme Court Passes Guidelines On Appointment Of Ad-Hoc Judges In HCs Under Article 224A

[Case: Lok Prahari v. Union of India & Ors.; Citation: LL 2021 SC 225]

A bench comprising of then CJI SA Bobde, Justices Sanjay Kishan Kaul and Surya Kant passed a slew of guidelines regarding the appointment of ad-hoc judges in High Courts under Article 224A of the Constitution, to tackle the problem of mounting case arrears in High Courts.

While agreeing that the discretion of the High Court Chief Justice cannot be curtailed, the bench said that certain general guidelines are needed so that the power under Article 224A is exercised in a transparent manner. It laid down 5 trigger points which can activate the process under Article 224A:

(i) If the vacancies are more than 20% of the sanctioned strength; (ii) The cases in a particular category are pending for over five years; (iii) More than 10% of the backlog of pending cases are over five years old; (iv) The percentage of the rate of disposal is lower than the institution of the cases either in a particular subject matter or generally in the Court; (v) Even if there are not many old cases pending, but depending on the jurisdiction, a situation of mounting arrears is likely to arise if the rate of disposal is consistently lower than the rate of filing over a period of a year or more.

Also Read: 'If Vacancies Are More Than 20% Sanctioned Strength' : Supreme Court Lays Down 5 Trigger Points To Appoint Ad-Hoc Judges In High Courts

35. Indian Parties Can Choose A Foreign Seat For Arbitration: Supreme Court

[Case: PASL Wind Solutions Private Limited v. GE Power Conversion India Pvt. Ltd.; Citation: LL 2021 SC 226]

A three-judge bench comprising of Justices Rohinton Fali Nariman, BR Gavai and Hrishikesh Roy held that parties to a contract who are Indian nationals or Companies incorporated in India can choose a forum for arbitration outside India. "Nothing stands in the way of party autonomy in designating a seat of arbitration outside India even when both parties happen to be Indian nationals," it observed.

"Freedom of contract needs to be balanced with clear and undeniable harm to the public, even if the facts of a particular case do not fall within the crystallised principles enumerated in well-established 'heads' of public policy. The question that then arises is whether there is anything in the public policy of India, as so understood, which interdicts the party autonomy of two Indian persons referring their disputes to arbitration at a neutral forum outside India," the Court said.

36. Mandamus Cannot Be Issued For Setting Up An Adjudicatory Body Or Tribunal: Supreme Court

[Case: John Paily v. State of Kerala; Citation: LL 2021 SC 227]

A Bench comprising of Justices DY Chandrachud and MR Shah observed that a mandamus cannot be issued by the Courts for setting up an adjudicatory body or Tribunal. It thus dismissed a petition seeking a direction to set up an independent Tribunal comprising of retired High Court judges who can look into the claims of each parish Church to determine which faction/denomination must have control over each such Church.

"Entry 11A of the Concurrent List of the Seventh Schedule to the Constitution deals with, inter alia, "constitution and organization of all courts, except the Supreme Court and the High Courts". Having due regard to the provisions of Articles 245 and 246 of the Constitution, no such mandamus can be issued by this Court. Nor can a direction be issued by this Court to the legislature of a State to enact a law." the bench observed.

37. Power Under Section 482 CrPC Cannot Be Used To Undermine Statutory Dictate Under Section 14, 17 IBC: Supreme Court

[Case: Case: Sandeep Khaitan, Resolution Professional For National Plywood Industries Ltd. v. JSVM Plywood Industries Ltd.; Citation: LL 2021 SC 228]

The power under Section 482 of CrPC cannot be used to overlook the undermining of a statutory dictate, a Bench comprising of Justices UU Lalit and KM Joseph observed.

In this case, the High Court allowed an interlocutory application filed by a Company claiming to be an operational creditor to allow it to operate its bank account maintained with the ICICI Bank and to unfreeze the bank account of its creditors over which the lien has been created and the accounts frozen pursuant to the lodging of an FIR by the Interim Resolution Professional.

"We have to also in this context bear in mind that the High Court appears to have, in passing the impugned order, which is an interim order for that matter, overlooked the salutary limits on its power under Section 482. The power under Section 482 may not be available to the Court to countenance the breach of a statuary provision. The words 'to secure the ends of justice' in Section 482 cannot mean to overlook the undermining of a statutory dictate, which in this case is the provisions of Section 14, and Section 17 of the IBC", the bench observed.

38. Liberty Is Important But Courts Must Consider Potential Threat To Witnesses, Victims While Granting Bail : Supreme Court

[Case: Sudha Singh v. State of Uttar Pradesh & Ors.; Citation: LL 2021 SC 229]

A Bench of then CJI SA Bobde, Justices AS Bopanna and V Ramasubramanian reiterated that it is necessary for courts to consider the impact on the witnesses or victims in a criminal case while granting bail to an accused. Observing thus, it set aside an order of the Allahabad High Court which granted bail to an accused who was arrested under the U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986.

The accused was alleged to be a contract killer and sharp shooter. Challenging the bail granted by the High Court, the widow of the deceased approach the Supreme Court. The Supreme Court observed that the High Court has overlooked several aspects, such as the potential threat to witnesses, forcing the trial court to grant protection.

39. Supreme Court Restores Order Extending Limitation; Period From 14.03.2021 Excluded From Computing Limitation Period Until Further Orders

[Case: In Re Cognizance of Extension of Limitation; Citation: LL 2021 SC 230]

A bench comprising of CJI NV Ramana, Justices Surya Kant and AS Bopanna extended limitation period for the filing of cases in courts and tribunals with effect from 14.03.2021 until further orders in view of the second wave of the COVID19 pandemic. The Court said the COVID19 second wave has created an "alarming situation" and has put the litigants in a "difficult situation".

The bench extended all periods of limitation ending on 14.03.2021 until further orders, by restoring the order passed on March 23, 2020, which had extended the limitation period. The period from 14.03.2021 will stand excluded from computing the limitation period under all special and general laws.

40. Section 3(2)(v) of SC/ST Act Will Attract As Long As Caste Identity Is One Of The Grounds For The Occurrence Of Offence: SC Doubts Earlier Judgments

[Case: Patan Jamal Vali v. State of Andhra Pradesh; Citation: LL 2021 SC 231]

A bench comprising Justices DY Chandrachud and MR Shah doubted the earlier judgments which interpreted Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,1989, to mean that the offence should have been committed "only on the ground that the victim was a member of the Scheduled Caste".

It observed that this provision will attract as long as caste identity is one of the grounds for the occurrence of the offence. To deny the protection of Section 3 (2) (v) on the premise that the crime was not committed against an SC & ST person solely on the ground of their caste identity is to deny how social inequalities function in a cumulative fashion, the court said.

The bench was considering the appeal filed by one Patan Jamal Vali, the sole accused tried for the offences punishable under Section 376(1) of the IPC and under Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act for committing rape on the victim girl who is aged about 20 years and blind by birth, on 31.03.2011 at about 9:30 AM in her house. The High Court had affirmed the conviction of the accused by the Trial Court on these charges. The Supreme Court finally set aside the conviction of the accused under Section 3(2)(v) of the SC and ST Act but upheld the conviction and life sentence punishable under Section 376 IPC.

Also Read: Testimony Of Disabled Witness Cannot Be Considered Weak Or Inferior: SC Issues Guidelines To Make Criminal Justice System More Disabled-Friendly

41. Supreme Court Directs High Courts To Reconsider And Update Rules Relating To Execution Of Decrees

[Case: Rahul S Shah v. Jinendra Kumar Gandhi; Citation: LL 2021 SC 232]

A bench comprising former CJI SA Bobde, Justices L. Nageswara Rao and S. Ravindra Bhat directed the High Courts to reconsider and update all the Rules relating to Execution of Decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 of CPC, within one year.

The observation came while issuing directions to reduce delays in the execution proceedings which shall be enforceable till the Rules are updated by High Courts. The court said that it must be ensured that the Rules are in consonance with CPC and the directions (issued now), with an endeavour to expedite the process of execution with the use of Information Technology tools.

The Court observed that in suits relating to delivery of possession, the court must examine the parties to the suit under Order X in relation to third party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.

Also Read: "Dispose Of Execution Proceedings Within Six Months From The Date Of Filing": Supreme Court Issues Directions To Reduce Delay

42. Supreme Court Dismisses Banks' Application To Recall Judgment Which Directed RBI To Disclose Loan Defaulters List, Inspection Reports Under RTI

[Case: Reserve Bank of India v Jayantilal N. Mistry; Citation: LL 2020 SC 233]

A bench comprising Justices L Nageswara Rao and Vineet Saran dismissed the applications filed by certain banks seeking to recall the 2015 judgment in the case Reserve Bank of India v Jayantilal N. Mistry which had held that the RBI was obliged to disclose defaulters list, inspection reports, annual statements etc., related to banks under the RTI Act.

The Bench observed that the Supreme Court Rules do not have any provision for filing any application for recall of a judgment. However, it has given liberty to the applicants to pursue other available legal remedies against the Jayantilal Mistry judgment.

In the Jayantilal Mistry case, the Supreme Court had rejected the argument of the Reserve Bank of India that it was holding the information of banks in a fiduciary capacity, and therefore such information was exempted from disclosure under the Right to Information Act as per Section 8(1)(e). The Court held that information obtained under a regulatory capacity or under the mandate of law cannot be termed as information held under fiduciary capacity.

43. Most Precious Fundamental Right To Life Unconditionally Embraces Even An Undertrial: Supreme Court in Sidhique Kappan Case

[Case: Kerala Union of Working Journalists v. Union of India; Citation: LL 2021 SC 234]

"The most precious fundamental 'right to life' unconditionally embraces even an undertrial," observed a bench comprising CJI NV Ramana, Justices Surya Kant and AS Bopanna while directing to shift Kerala journalist Sidhique Kappan from Mathura Jail in Uttar Pradesh to a Government hospital in Delhi for medical treatment.

While considering the plea, the court noted from the Medical Report submitted before it that Kappan had tested COVID-19 Positive on 21st April, 2021, was having fever (T-102F) and had also suffered an injury as he fainted and fell down in the bathroom for which intervention of a surgeon was suggested. It was stated therein that he is having multiple health issues like diabetes, heart ailment, blood pressure and bodily injury. However, the next set of medical reports and the additional affidavit circulated by the State this morning show that he has tested COVID-19 Negative, the court noted.

Also Read: 'In UP Also, COVID Positive People Are Not Getting Hospital Beds', Solicitor General Tells Supreme Court In Siddique Kappan Case

44. Deduction Under Section 80-IA Income Tax Act Not Restricted To 'Business Income' Only: Supreme Court

[Case: Commissioner of Income Tax-I v. Reliance Energy Ltd.; Citation: LL 2021 SC 235]

A bench comprising Justices L. Nageswara Rao and Vineet Saran held that the scope of sub-section (5) of Section 80- IA of the Act is limited to determination of quantum of deduction under sub-section (1) of Section 80-IA of the Act by treating 'eligible business' as the 'only source of income'.

The court observed that the essential ingredients of Section 80-IA (1) of the Act are: a) the 'gross total income' of an assessee should include profits and gains; b) those profits and gains are derived by an undertaking or an enterprise from a business referred to in subsection (4); c) the assessee is entitled for deduction of an amount equal to 100% of the profits and gains derived from such business for 10 consecutive assessment years; and d) in computing the 'total income' of the Assessee, such deduction shall be allowed.

45. Don't Clampdown On Citizens' SOS Calls For Medical Help Through Social Media: Supreme Court Warns Of Contempt Action Against States, Police

[Case: In Re Distribution of Essential Supplies and Services During Pandemic; Citation: LL 2021 SC 236]

There should not be any coercive action against any citizen for putting out an SOS call on social media seeking medical help for COVID, said a Bench comprising of Justices DY Chandrachud, L. Nageswara Rao and S Ravindra Bhat.

The Court strictly said that contempt action will be taken against police officers who clampdown on citizens who ventilate their grievances with respect to COVID in public platforms. "If citizens communicate their grievance on social media and internet, then it cannot be said that it's wrong information," the Bench observed.

Also Read: Sharing Information Widely An Important Tool To Combat COVID : Supreme Court On SOS Calls In Social Media

46. Benefits Flowing From Modified Assured Career Progression Scheme Are Incentives And Are Not Part Of Pay: Supreme Court

[Case: Union of India v. RK Sharma; Citation: LL 2021 SC 237]

Benefits flowing from Assured Career Progression Scheme ('ACPS') and Modified ACPS (MACPS) are incentives and are not part of pay, a Bench comprising of Justices L. Nageswara Rao and Vineet Saran observed.

It allowed Centre's appeal against the Delhi High Court direction to grant the second financial upgradation to the employees under the MACPS w.e.f. 01.01.2006 by relying upon a judgment in Union of India & Ors. v. Balbir Singh Turn.

Before the Apex Court, Centre submitted that in Balbir Singh Turn (supra), it was held that payment under the ACPS is a part of the pay structure whereas in a later judgment in Union of India and Ors. v. MV Mohanan Nair, it was held both ACP and MACP schemes are in the nature of incentive schemes. It was contended that the employees are entitled to the incentive under ACP Scheme which was in vogue till 31.08.2008 and they cannot seek applicability of MACPS w.e.f. 01.01.2006.

47. High Court Shall Apply Its Mind To The Entirety Of The Case While Deciding A Criminal Appeal, Reiterates Supreme Court

[Case: State of Uttar Pradesh v. Ambarish; Citation: LL 2021 SC 238]

A Bench of Justices DY Chandrachud and MR Shah has reiterated that while deciding a criminal appeal on merits, the High Court is required to apply its mind to the entirety of the case including the evidence on the record before arriving at its conclusion.

It observed thus while allowing an appeal against an Allahabad High Court judgment which reversed the conviction of the accused by the Trial Court. In this case, the accused was convicted of an offence under Section 364A of the Penal Code and was sentenced to undergo imprisonment for life, to a fine of Rs 5,000 and, in default, to undergo imprisonment for a period of one year. The Trial Court judgment was set aside by the High Court by allowing the appeal. The state, therefore, approached the Apex Court.

48. Minor Contradictions Can Not Be A Ground To Discredit Witnesses' Testimony In Criminal Trial, Reiterates Supreme Court

[Case: Kalabhai Hamirbhai Kachhot v. State of Gujarat; Citation: LL 2021 SC 239]

A bench comprising of Justices Ashok Bhushan and R. Subhash Reddy reiterated that minor contradictions cannot be a ground to discredit the testimony of the witnesses in a criminal trial. "The contradictions which are sought to be projected are minor contradictions which cannot be the basis to discard their evidence... If the entire evidence of all the witnesses is examined with reference to medical and other evidence on record, it is clear that the prosecution has proved the guilt of the accused beyond reasonable doubt", it observed in a case.

The court was considering an appeal filed by the accused who were convicted for the offences under Section 302 read with 34, IPC and Section 135(1) of the Bombay Police Act. In appeal, one of the contentions raised by the accused was that there are major contradictions in the deposition of two prosecution witnesses.

Supreme Court Monthly Digest: January 2021 [Citation: LL 2021 SC 1 To LL 2021 SC 54]

Supreme Court Monthly Digest: February 2021 [Citation: LL 2021 SC 55 To LL 2021 SC 117]

Supreme Court Monthly Digest: March 2021 [Citation: LL 2021 SC 118 To LL 2021 SC 192]