SUBJECT WISE INDEX

Amendment

Retrospective application for Amendment - Amendment by substitution has the effect of wiping the earlier provision from the statute book and replacing it with the amended provision as if the unamended provision never existed - 2015 amendment substituted "belong/belongs" in Section 153C with "pertain/pertains" and hence is amendment by substitution. (Para 10.4) Income Tax Officer v. Vikram Sujitkumar Bhatia, 2023 LiveLaw (SC) 274

Bail & Remand

Supreme Court expresses anguish at trial court dismissing bail application ignoring its judgment in Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577 - Directs District Judge to transfer case to another Magistrate - Reminds that Prosecutors have duty to inform the court of the correct legal position. Deepak Kumar Azad @ Pappu v. State of Bihar, 2023 LiveLaw (SC) 278

E-Filing

Practice and Procedure - E-Filing - Supreme Court affirms mandatory e-filing in DRTs and DRATs - Issues directions to enable access to people who are technologically deprived - Directions issued to set up e-sewa kendras. M.P. High Court Bar Association v. Union of India, 2023 LiveLaw (SC) 276

E-Filing and Virtual Courts - There can be no gainsaying the fact that e-filing provides transparency and efficiency in the administration of justice. E-filing provides for 24x7 access to the court system and, in fact, facilitates the convenience of lawyers as well as litigants. With the march of technology, it would be too late in the day to postulate that e-filing should not be adopted. As a matter of fact, the decision to take up e-filing must be replicated by other tribunals and courts in the country, including the High Courts in a phased manner and that it eventually becomes mandatory. (Para 12) M.P. High Court Bar Association v. Union of India, 2023 LiveLaw (SC) 276

E-Filing - Supreme Court refuses to allow an exception to women lawyers - not inclined to accept the submission that there should be a general exception to female practitioners and litigants. There is no reason to postulate that there is a gender divide in one’s inherent ability to use technology. (Para 20) M.P. High Court Bar Association v. Union of India, 2023 LiveLaw (SC) 276

Civil Law

For Res Judicata To Apply, Previous Suit Should Have Been Decided On Merits : Supreme Court Explains Principles. Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266

[Order 17 Rule 3 CPC] Suit can be decided on merit if there is some material, though it may not be strictly "evidence". Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266

Constitution

'No equality in matter of illegality': Supreme Court denies relief to school teacher dismissed for degree through distance education. Sunil Kumar Soni v. State of Rajasthan, 2023 LiveLaw (SC) 271

Criminal Law

Power to transfer cases to be used sparingly; may cast unnecessary aspersions on state judiciary & prosecution agency. Afjal Ali Sha @ Abjal Shaukat v. State of West Bengal, 2023 LiveLaw (SC) 268

Evidence Law

Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. (Para 39) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

Cross-examination - During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same. (Para 44) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

Cross-examination - The main object of cross-examination is to find out the truth on record and to help the Court in knowing the truth of the case. It is a matter of common experience that many a times the defence lawyers themselves get the discrepancies clarified arising during the cross-examination in one paragraph and getting themselves contradicted in the other paragraph. The line of cross-examination is always on the basis of the defence which the counsel would keep in mind to defend the accused. (Para 43) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

Injured Witness - The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (Para 26) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

Right of Private Defence - If a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the accused is established the same would definitely be admissible in evidence. (Para 45) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

Suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused. (Para 42) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

The suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client. (Para 38) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

Interpretation of Statutes

Once the primary intention is ascertained and the object and purpose of the legislation is known, it then becomes the duty of the Court to give the statute a purposeful or a functional interpretation - Primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the Court must then strive to so interpret the statute as to promote or advance the object and purpose of the enactment - Ascertainment of the legislative intent is a basic rule of statutory construction and that a rule of construction should be preferred which advances the purpose and object of a legislation and that though the construction, according to the plain language, should ordinarily be adopted, such a construction should not be adopted where it leads to anomalies, injustices or absurdities. (Para 10.7) Income Tax Officer v. Vikram Sujitkumar Bhatia, 2023 LiveLaw (SC) 274

Judicial Service

Judicial officers' pay hike - Supreme Court dismisses review petitions of Centre & States against direction to implement commission recommendations. Union of India v. All India Judges Association, 2023 LiveLaw (SC) 273

Supreme Court dismisses petitions filed by Union of India and some states to review the order for implementation of the enhanced pay scale for judicial officers as per the recommendation of the Second National Judicial Pay Commission (SNJPC) - Argument that uniform Index of Rationalisation (IoR) would equate the district courts with constitutional courts is erroneous; all Judges across the hierarchy of courts discharge the same essential function - The standards of ethics and professionalism expected of judges are more rigorous than those applied to other services / professions. Ensuring adequate emoluments, pension and proper working conditions for the members of the district judiciary has an important bearing on the efficiency of judicial administration and the effective discharge of the unique role assigned to the judiciary. (Para 14, 15) Union of India v. All India Judges Association, 2023 LiveLaw (SC) 273

Medical Education

Foreign Medical Graduates - Supreme Court allows repatriated medical students from Ukraine, China etc., who are in their penultimate year to clear the MBBS exam in two attempt as an extraordinary measure. Archita v. National Medical Commission, 2023 LiveLaw (SC) 275

Motor Vehicle

HC Order reducing sentence in motor accident case quashed, SC says, ‘undue sympathy is unsustainable when aim of IPC is to punish offenders’. State of Punjab v. Dil Bahadur, 2023 LiveLaw (SC) 267

National Security

National Security and Natural Justice - Mere involvement of issues concerning national security would not preclude the state’s duty to act fairly. If the State discards its duty to act fairly, then it must be justified before the court on the facts of the case. Firstly, the State must satisfy the Court that national security concerns are involved. Secondly, the State must satisfy the court that an abrogation of the principle(s) of natural justice is justified - concerns of national 2 security do not permit an absolute abrogation of the principles of natural justice. (Para 75 and 76) Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269

IB Reports not wholly immune from disclosure - The reports of the intelligence agencies are not merely fact-finding reports. Reports of investigative agencies make observations and provide inferences on the conduct of individuals which are then relied upon by the decision making authority. To argue that reports of the intelligence agencies may contain confidential information is one thing but to argue that the all such reports are confidential is another. Such an argument is misplaced and cannot be accepted on the touchstone of constitutional values. The reports by investigative agencies impact decisions on the life, liberty, and profession of individuals and entities, and to give such reports absolute immunity from disclosure is antithetical to a transparent and accountable system - A blanket immunity from disclosure of all investigative reports cannot be granted. (Para 81) Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269

National Security and Judicial Review - the Courts do not resort to a hands-off approach when it is claimed that national security implications are involved. (Para 83) The Court must assess the validity of the claim of purpose by determining (i) whether there is material to conclude that the nondisclosure of the information is in the interest of national security; and (ii) whether a reasonable prudent person would arrive at the same conclusion based on the materials. National Security - The State is using national security as a tool to deny citizens remedies that are provided under the law. This is not compatible with the rule of law. (Para 97) Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269

Sealed Cover Procedure

Supreme Court quashes the decision of the Ministry of Information & Broadcasting to not renew the telecast license for Malayalam news channel MediaOne - Disapproves the "sealed cover procedure" adopted by the High Court in upholding the Govt decision on the basis of confidential documents furnished by MHA in sealed cover. Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269

It is now an established principle of natural justice that relevant material must be disclosed to the affected party. This rule ensures that the affected party is able to effectively exercise their right to appeal. When relevant material is disclosed in a sealed cover, there are two injuries that are perpetuated. First, the documents are not available to the affected party. Second, the documents are relied upon by the opposite party (which is most often the state) in the course of the arguments, and the court arrives at a finding by relying on the material. In such a case, the affected party does not have any recourse to legal remedies because it would be unable to (dis)prove any inferences from the material before the adjudicating authority. (Para 58) Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269

This form of adjudication perpetuates a culture of secrecy and opaqueness, and places the judgment beyond the reach of challenge - The right to seek judicial review which has now been read into Articles 14 and 21 is restricted. A corresponding effect of the sealed cover procedure is a non-reasoned order. (Para 59) Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269

Sealed cover procedures violate both principles of natural justice and open justice. (Para 146) Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269

Public Immunity Claim procedure devised as a less restrictive alternative to sealed cover procedure. (Para 171 to 173) Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269

Service Law

For out of turn promotion, parity can't be claimed. State of Madhya Pradesh v. Sanjay Shukla, 2023 LiveLaw (SC) 277

Tax

Service Tax - Issuance of a corporate guarantee on behalf of group companies without consideration is not a taxable service. Commissioner of CGST and Central Excise v. Edelweiss Financial Services Ltd., 2023 LiveLaw (SC) 281

2015 amendment to Section 153C of Income Tax Act will apply to searches conducted prior to the date of amendment. Income Tax Officer v. Vikram Sujitkumar Bhatia, 2023 LiveLaw (SC) 274

STATUTE WISE INDEX

Code of Civil Procedure 1908; Section 11 - Res Judicata - Guiding principles summarized. (Para 33) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266

Code of Civil Procedure, 1908; Order 17 Rule 3 - The power conferred on Courts under Rule 3 of Order 17 of the CPC to decide the suit on the merits for the default of a party is a drastic power which seriously restricts the remedy of the unsuccessful party for redress. It has to be used only sparingly in exceptional cases. Physical presence without preparedness to co-operate for anything connected with the progress of the case serves no useful purpose in deciding the suit on the merits and it is worse than absence. There must be some materials for a decision on the merits, even though the materials may not be technically interpreted as evidence. Sometimes the decision in such cases. (Para 52) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266

Code of Civil Procedure, 1908; Section 11 - Res judicata - An order closing the proceedings is not final decision of the suit within the meaning of Order 9 Rule 8 and Order 17 Rule 3 resply of the CPC - will not operate as res judiciata. (Para 55) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266

Code of Civil Procedure, 1908; Section 11 - Res Judiciata - The general principle of res judicata under Section 11 of the CPC contain rules of conclusiveness of judgment, but for res judicata to apply, the matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit. Further, the suit should have been decided on merits and the decision should have attained finality. Where the former suit is dismissed by the trial court for want of jurisdiction, or for default of the plaintiff’s appearance, or on the ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letter of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation, or for failure to pay additional court fee on a plaint which was undervalued, or for want of cause of action, or on the ground that it is premature and the dismissal is confirmed in appeal (if any), the decision, not being on the merits, would not be res judicata in a subsequent suit. (Para 34) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266

Code of Criminal Procedure 1973; Section 406 - This Court has allowed transfers only in exceptional cases considering the fact that transfers may cast unnecessary aspersions on the State Judiciary and the prosecution agency. Thus, over the years, this Court has laid down certain guidelines and situations wherein such power can be justiciably invoked. Afjal Ali Sha @ Abjal Shaukat v. State of West Bengal, 2023 LiveLaw (SC) 268

Constitution of India, 1950; Article 14 - Doctrine of Equality - there cannot be equality in the matter of illegality - can't claim benefit of illegal orders passed in the cases of other persons - denies relief to school teacher who secured bachelor's degree through distance education. Sunil Kumar Soni v. State of Rajasthan, 2023 LiveLaw (SC) 271

Constitution of India, 1950; Article 19(2) - the non-renewal of permission to operate a media channel is a restriction on the freedom of the press which can only be reasonably restricted on the grounds stipulated in Article 19(2) of the Constitution. The reasons for denying a security clearance to MBL, that is, its alleged antiestablishment stance and the alleged link of the shareholders to JEIH, are not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution. In any event, there was no material to demonstrate any link of the shareholders, as was alleged. Principles of Natural Justice - The principles of natural justice ensure that justice is not only done but it is seen to be done as well. A reasoned order is one of the fundamental requirements of fair administration. (Para 56) Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269

Constitution of India, 1950; Article 19(a) - Press Freedom - An independent press is vital for the robust functioning of a democratic republic - Its role in a democratic society is crucial for it shines a light on the functioning of the state. The press has a duty to speak truth to power, and present citizens with hard facts enabling them to make choices that propel democracy in the right direction. The restriction on the freedom of the press compels citizens to think along the same tangent. A homogenised view on issues that range from socioeconomic polity to political ideologies would pose grave dangers to democracy. The critical views of the Channel, Media-One on policies of the government cannot be termed, ‘anti-establishment’. The use of such a terminology in itself, represents an expectation that the press must support the establishment. The action of the MIB by denying a security clearance to a media channel on the basis of the views which the channel is constitutionally entitled to hold produces a chilling effect on free speech, and in particular on press freedom. (Para 166 and 167) Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269

Essential Commodities Act, 1955; Section 7 - Person convicted for unauthorized possession of LPG cylinders acquitted - SI who took action was found to be not an authorized officer who could take action under the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order - In the absence of the authority and power with the Sub-Inspector to take action as per the Order, the proceedings initiated by him will be totally unauthorised and have to be struck down - Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods are necessarily forbidden. Avtar Singh v. State of Punjab, 2023 LiveLaw (SC) 272

Evidence Act, 1872; Section 6 - Principle of res gestae - Relevancy of facts forming part of same transaction - The rule embodied in Section 6 is usually known as the rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence. (Para 49) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

Income Tax Act, 1961 - The amendment brought to Section 153C of the Act, 1961 vide Finance Act, 2015 shall be applicable to searches conducted under Section 132 of the Act, 1961 before 01.06.2015, i.e., the date of the amendment. (Para 11) Income Tax Officer v. Vikram Sujitkumar Bhatia, 2023 LiveLaw (SC) 274

Income Tax Act, 1961; Section 153C - The object and purpose of Section 153C is to address the persons other than the searched person - 2015 amendment was necessitated because of the narrow interpretation given to "belong/belongs" in Section 153C by the Delhi High Court in Pepsico Holdings which led to a situation where, though incriminating material pertaining to a third party / person was found during search proceedings under Section 132, the Revenue could not proceed against such a third party. (Para 10.8) Income Tax Officer v. Vikram Sujitkumar Bhatia, 2023 LiveLaw (SC) 274

Insolvency and Bankruptcy Code, 2016; Section 9 - When a petition under Section 9 of IBC is filed based on several invoices and some of the invoices are time barred, then NCLT must consider the remaining invoices which are within limitation and whether they cross the minimum threshold of Rs. 1 Crore. The Section 9 petition cannot be dismissed on the sole ground that some of the invoices are time barred. Next Education India Pvt. Ltd. v K12 Techno Services Pvt. Ltd., 2023 LiveLaw (SC) 270

Penal Code, 1860 - Distinction between murder and the culpable homicide not amounting to murder – Explained. (Para 54) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

Penal Code, 1860; Exception 4 to Section 300 - Essential requirement - Four conditions must be satisfied to bring the matter within Exception 4 - (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in the heat of passion; and; that (iv) the assailant had not taken any undue advantage or acted in a cruel manner - On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. (Para 58 & 59) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

Penal Code, 1860; Exception 4 to Section 300 - It is very difficult to accept the submission that the case would fall within the Exception 4 to Section 300 of the IPC and such benefit be extended to the accused. Assuming for the moment that the incident had occurred in the heat of the moment and fight was also sudden, we should not overlook the fact that the appellants herein inflicted as many as nine blows with a dangerous weapon on the deceased who was unarmed and was helpless. For cases to fall within clause (3) of Section 300 of the IPC, it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. (Para 61) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

Penal Code, 1860; Section 300 - the sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder. (Para 57) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

Penal Code, 1860; Section 302 - Having regard to the nature of the injuries caused by dangerous weapons like sickle and sword which, were applied on the vital part of the body, there is no escape from the conclusion that it is a case of Section 302 of the IPC. (Para 60) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

Penal Code, 1860; Sections 279, 304A – Motor Accident Case – Reduction of sentence of convict – Object of Indian Penal Code is to punish offenders for offences under the act – Indian Penal Code punitive and deterrent – Corrective measures ought to be recognised while sentencing convict but deterrence became imperative necessity under certain circumstances – Expressing undue sympathy by imposing inadequate sentence harms justice system by causing the erosion of public confidence in efficacy of law – Held, undue sympathy expressed by the high court unsustainable and order liable to be quashed and set aside thereby restoring the original sentence imposed by lower courts – Appeal allowed. State of Punjab v. Dil Bahadur, 2023 LiveLaw (SC) 267

Police Regulations (Madhya Pradesh) - As per Regulation 70A, out-of-turn promotion cannot be claimed as a matter of right. State of Madhya Pradesh v. Sanjay Shukla, 2023 LiveLaw (SC) 277

Sales Tax Act, 1976 (Tripura) - Memorandum issued by the Government to deduct the tax at 4% and the bills to be paid to the transferors cannot be said to be ultra vires to TST Act - Mere providing for a mode of recovery and/or providing for machinery/mechanism to recover the tax to be paid by the transferor/supplier from the person buying the goods deducting the tax at source and depositing the same with the Revenue cannot be said to be ultra vires to TST Act and the Rules. State of Tripura v. Chandan Deb, 2023 LiveLaw (SC) 280

NOMINAL INDEX

1. Afjal Ali Sha @ Abjal Shaukat v. State of West Bengal, 2023 LiveLaw (SC) 268

2. Archita v. National Medical Commission, 2023 LiveLaw (SC) 275

3. Avtar Singh v. State of Punjab, 2023 LiveLaw (SC) 272

4. Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279

5. Commissioner of CGST and Central Excise v. Edelweiss Financial Services Ltd., 2023 LiveLaw (SC) 281

6. Deepak Kumar Azad @ Pappu v. State of Bihar, 2023 LiveLaw (SC) 278

7. Income Tax Officer v. Vikram Sujitkumar Bhatia, 2023 LiveLaw (SC) 274

8. M.P. High Court Bar Association v. Union of India, 2023 LiveLaw (SC) 276

9. Madhyamam Broadcasting Ltd. v. Union of India, 2023 LiveLaw (SC) 269

10. Next Education India Pvt. Ltd. v K12 Techno Services Pvt. Ltd., 2023 LiveLaw (SC) 270

11. Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266

12. State of Madhya Pradesh v. Sanjay Shukla, 2023 LiveLaw (SC) 277

13. State of Punjab v. Dil Bahadur, 2023 LiveLaw (SC) 267

14. State of Tripura v. Chandan Deb, 2023 LiveLaw (SC) 280

15. Sunil Kumar Soni v. State of Rajasthan, 2023 LiveLaw (SC) 271

16. Union of India v. All India Judges Association, 2023 LiveLaw (SC) 273