Supreme Court Weekly Digest With Nominal And Subject/Statute Wise Index (July 25 - July 31, 2022)

Child Custody - The question 'what is the wish/desire of the child' is different and distinct from the question 'what would be in the best interest of the child'. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to 'what would be in the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child - Unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, 'what would be the best interest of the child concerned' - Welfare of the child should be the paramount consideration. (Para 8) Rohith Thammana Gowda v. State of Karnataka, 2022 LiveLaw (SC) 643

Civil Cases - Pleadings - Relief not found on pleadings should not be granted. If a Court considers or grants a relief for which no prayer or pleading was made depriving the respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice. (Para 15-18) Akella Lalita v. Sri Konda Hanumantha Rao, 2022 LiveLaw (SC) 638

Code of Criminal Procedure, 1973; Section 138 - Anticipatory Bail - Adverse order against third party by High Court in an anticipatory bail proceedings - It is a peremptory direction affecting a third party. The adverse impact of the direction goes to the very livelihood of the appellant. It has also civil consequences for the appellant. Such a peremptory direction and that too, without even issuing any notice to the appellant was clearly unjustified. Kanchan Kumari v. State of Bihar, 2022 LiveLaw (SC) 640

Code of Criminal Procedure, 1973; Section 226 - Before the Court proceeds to frame the charge against the accused, the Public Prosecutor owes a duty to give a fair idea to the Court as regards the case of the prosecution - Over a period of time, this provision has gone, in oblivion - It permits the prosecution to make the first impression regards a case, one which might be difficult to dispel. In not insisting upon its right under Section 226 of the CrPC, the prosecution would be doing itself a disfavour. (Para 20, 15) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Section 227-228 - Cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure" - Whether Trial Court could have discharged the accused from offence of murder - At the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the port mortem report on record - Whether the case falls under Section 302 or 304 Part II, IPC could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record. (Para 31) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Section 228 - The prosecution case is necessarily limited by the charge. It forms the foundation of the trial which starts with it and the accused can justifiably concentrate on meeting the subject­ matter of the charge against him. He need not cross ­examine witnesses with regard to offences he is not charged with nor need he give any evidence in defence in respect of such charges - Where a higher charge is not framed for which there is evidence, the accused is entitled to assume that he is called upon to defend himself only with regard to the lesser offence for which he has been charged. It is not necessary then for him to meet evidence relating to the offences with which he has not been charged. He is merely to answer the charge as framed. The Code does not require him to meet all evidence led by prosecution. He has only to rebut evidence bearing on the charge. (Para 32) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Section 228 - The purpose of framing a charge is to intimate to the accused the clear, unambiguous and precise nature of accusation that the accused is called upon to meet in the course of a trial - Scope of Court's powers in respect of the framing of charges - Referred to Dipakbhai Jagdishchndra Patel v. State of Gujarat (2019) 16 SCC 547 et al - The trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. (Para 21-27) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Section 228 - There is an inbuilt element of presumption - Meaning of 'presumption'. (Para 28) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Section 41 - Power of Arrest - Police officers have a duty to apply their mind to the case before them and ensure that the condition(s) in Section 41 are met before they conduct an arrest - Supreme Court reiterates the guidelines for arrest laid down in the 2014 Arnesh Kumar vs State of Bihar (2014) 8 SCC 273. [Para 27, 28] Mohammed Zubair v. State of NCT of Delhi, 2022 LiveLaw (SC) 629

Code of Criminal Procedure, 1973; Section 439(2) - Bail conditions -The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed. [Para 29] Mohammed Zubair v. State of NCT of Delhi, 2022 LiveLaw (SC) 629

Code of Criminal Procedure, 1973; Section 45 - Expert Witness - A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. (Para 29) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Code of Criminal Procedure, 1973; Section 482 - Crimes like murder, rape, burglary, dacoity and even abetment to commit suicide are neither private nor civil in nature - In no circumstances can prosecution be quashed on compromise, when the offence is serious and grave and falls within the ambit of crime against society. (Para 38) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Code of Criminal Procedure, 1973; Section 482 - Indian Penal Code, 1860; Section 306 - An FIR under Section 306 IPC cannot even be quashed on the basis of any financial settlement with the informant, surviving spouse, parents, children, guardians, care-givers or anyone else - Section 306 IPC falls in the category of heinous and serious offences and are to be treated as crime against society and not against the individual alone. (Para 50) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Code of Criminal Procedure, 1973; Section 482 - Scope and powers of High Court discussed - The inherent power of the High Court under Section 482 of the Cr.P.C. is wide and can even be exercised to quash criminal proceedings relating to non-compoundable offences, to secure the ends of justice or to prevent abuse of the process of Court. Where the victim and offender have compromised disputes essentially civil and personal in nature, the High Court can exercise its power under Section 482 of the CrPC to quash the criminal proceedings. In what cases power to quash an FIR or a criminal complaint or criminal proceedings upon compromise can be exercised, would depend on the facts and circumstances of the case. (Para 26-37) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Code of Criminal Procedure, 1973; Section 482 - The Criminal Proceeding cannot be quashed only because there is a settlement (including monetary settlement) between the accused and the complainant and other relatives of the deceased to the exclusion of the hapless widow of the deceased. (Para 50) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Code of Criminal Procedure, 1973; Section 482 - The High Court has the inherent power to recall a judgment and/or order which was without jurisdiction or a judgment and/or order passed without hearing a person prejudicially affected by the judgment and/or order. (Para 22) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Code of Criminal Procedure, 1973; Sections 11, 12, 15, 16, 17, 19 and 35 - The Additional Chief Metropolitan Magistrate can be said to be at par with the Chief Metropolitan Magistrate in so far as the powers to be exercised under the Cr.PC are concerned - The Chief Metropolitan Magistrate in addition, may have administrative powers. (Para 10-10.1) R.D. Jain and Co. v. Capital First Ltd., 2022 LiveLaw (SC) 634

Code of Criminal Procedure, 1973; Sections 227-228, 239-240, 245 - The case may be a sessions case, a warrant case, or a summons case, the point is that a prima facie case must be made out before a charge can be framed. (Para 19) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

Constitution of India, 1950; Article 14 - does not prohibit the classification of persons or class of persons provided it is not arbitrary - classification has to be reasonable - classification is permissible provided it is founded on an intelligible differentia - classification must have a rational nexus to the objects sought to be achieved by it - whether Haj Committees under the 2002 Act, can be treated as a separate class - on the ground both HGOs and the Haj Committee render service to the same class of persons, the classification made by treating the Haj Committee as a separate class, cannot be questioned - different classes of service providers rendering the same service to the same class of service recipients does not amount to discrimination - Haj Committee is a statutory committee which is entrusted with various functions for the welfare of Haj pilgrims - profit motive is completely absent in the case of the Haj Committee - Haj Committee constitutes a class in itself when it comes to rendering service to Haj pilgrims - it is a separate class as distinguished from HGOs. [Para 56, 60] All India Haj Umrah Tour Organizer Association Mumbai v. Union of India, 2022 LiveLaw (SC) 632

Constitution of India, 1950; Article 19(1)(a) - Freedom of speech and expression - Mohammed Zubair Case- Blanket bail orders to prevent the petitoner from tweeting cannot be imposed, merely because the case is based on tweets- Gag orders have a chilling effect on the freedom of speech. According to the petitioner, he is a journalist who is the co-founder of a fact checking website and he uses Twitter as a medium of communication to dispel false news and misinformation in this age of morphed images, clickbait, and tailored videos. Passing an order restricting him from posting on social media would amount to an unjustified violation of the freedom of speech and expression, and the freedom to practice his profession. [Para 30] Mohammed Zubair v. State of NCT of Delhi, 2022 LiveLaw (SC) 629

Constitution of India, 1950; Article 21 - Personal Liberty and power of arrest - Arrest is not meant to be and must not be used as a punitive tool because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty. Individuals must not be punished solely on the basis of allegations, and without a fair trial. When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power. The criminal law and its processes ought not to be instrumentalized as a tool of harassment. Section 41 of the CrPC as well as the safeguards in criminal law exist in recognition of the reality that any criminal proceeding almost inevitably involves the might of the state, with unlimited resources at its disposal, against a lone individual. [Para 27, 28] Mohammed Zubair v. State of NCT of Delhi, 2022 LiveLaw (SC) 629

Constitution of India, 1950; Article 226 - Examining Constitutional validity of legislation - There is a presumption about the constitutionality of the law made by the Parliament/State Legislature - High Court should not deal with the question of validity in a cryptic/casual manner. (Para 14-16) State of Karnataka v. B.R. Muralidhar, 2022 LiveLaw (SC) 637

Constitution of India, 1950; Article 226 - Habeas Corpus - Child Custody - Parens patriae jurisdiction - Even while considering Habeas Corpus writ petition qua a minor, in a given case, the High Courts may direct for return of the child or decline to change the custody of the child taking into account the attending facts and circumstances. (Para 9) Rohith Thammana Gowda v. State of Karnataka, 2022 LiveLaw (SC) 643

Constitution of India, 1950; Article 254 - Tests of repugnancy - (1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by State Legislature occupy the same fieldRepugnancy may arise between two enactments even though obedience to each of them is possible without disobeying the other if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field. (Para 32-33) All Kerala Distributors Association v. State of Kerala, 2022 LiveLaw (SC) 639

Constitution of India, 1950; Articles 21 and 300-A - Right to property had ceased to be a fundamental right. True that it is a human right as also constitutional right. Hence, compulsory acquisition by scrupulous adherence to the procedures authorised by law would not violate Article 300-A. (Para 26) Haryana State Industrial and Infrastructure Development Corporation v. Deepak Aggarwal, 2022 LiveLaw (SC) 644

Criminal Investigation and Trial - In case of grave and serious non compoundable offences which impact society, the informant and/or complainant only has the right of hearing, to the extent of ensuring that justice is done by conviction and punishment of the offender. An informant has no right in law to withdraw the complaint of a non-compoundable offence of a grave, serious and/or heinous nature, which impacts society. (Para 39) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Criminal Trial - Post Mortem Report - The post mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence - It can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness box under Section 145 of the Evidence Act, 1872. (Para 29) Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631

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

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

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

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

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

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

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

Interpretation of Statutes - Municipal laws giving effect to International Conventions - Courts of law must endeavor to maintain a uniformity of interpretation with courts of other jurisdictions while interpreting international treaties and conventions. (Para 29) Bhagwandas B. Ramchandani v. British Airways, 2022 LiveLaw (SC) 645

Judicial Infrastructure - Supreme Court directs the Law Secretaries of all State Governments to file affidavits relating to budget allocation and utilization. Imtiaz Ahmad v State of Uttar Pradesh, 2022 LiveLaw (SC) 636

Legal Maxims - Falsus in uno, falsus in omnibus is not the principle applicable in India. (Para 6) Rishi Pal Singh v. New India Assurance Co Ltd., 2022 LiveLaw (SC) 646

Limitation Act, 1963 - Section 3 only bars the remedy, but when the right itself is extinguished, provisions of the Limitation Act have no application. (Para 15.2) Bhagwandas B. Ramchandani v. British Airways, 2022 LiveLaw (SC) 645

Limitation Act, 1963; Section 29(2) - Express empowerment is to be gathered from the provisions of the statute - Even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. (Para 48) Bhagwandas B. Ramchandani v. British Airways, 2022 LiveLaw (SC) 645

Motor Accident Claims - The owner of the vehicle is expected to verify the driving skills and not run to the licensing authority to verify the genuineness of the driving license before appointing a driver. Therefore, once the owner is satisfied that the driver is competent to drive the vehicle, it is not expected from the owner thereafter to verify the genuineness of the driving license issued to the drive. (Para 10) Rishi Pal Singh v. New India Assurance Co Ltd., 2022 LiveLaw (SC) 646

Motor Vehicles Taxation Act, 1976; Section 4(7), 4(8), 15 - Kerala Motor Transport Workers' Welfare Fund Act, 1985; Section 8A - Constitutional validity upheld -There is nothing wrong in State Legislature making it compulsory to pay outstanding welfare fund contribution first before accepting the vehicle tax which had become due and payable - These provisions are in no way in conflict with Motor Vehicles Act, 1988 - The real intent and purpose behind these provisions is to restate the mandate stated in the 1988 Act that the vehicle cannot be used on road without a valid permit and payment of vehicle tax up to date. (Para 40) All Kerala Distributors Association v. State of Kerala, 2022 LiveLaw (SC) 639

NEET Admissions - Court cannot issue a mandamus directing the respondent to conduct admissions through institutional preference. The decision of whether or not to provide institutional preference solely lies with the respondent-authority since it falls within the realm of policy. (Para 9) Hemant Kumar Verma v. Employee State Insurance Corporation, 2022 LiveLaw (SC) 641

NEET In-Service Quota - Junior Resident Doctors serving in Employee State Insurance Corporation (ESIC) run hospitals as part of their bond period cannot claim 50% in-service quota for Post Graduate courses at par with Insurance Medical Officers-There is a clear distinction in law between junior resident doctors and regularly recruited ESIC doctors. The in-service quota is, therefore, justifiably made available to the latter category. The petitioners cannot claim parity with regularly recruited insurance medical officers in seeking the benefit of the in-service quota. (Para 10) Hemant Kumar Verma v. Employee State Insurance Corporation, 2022 LiveLaw (SC) 641

Penal Code, 1860; Section 306 - Abetment to commit suicide - Even an indirect act of incitement to the commission of suicide would constitute the offence of abetment of suicide. (Para 16) Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642

Practice and Procedure - 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 of performance are necessarily forbidden. (Para 14-17) Union of India v. Mahendra Singh, 2022 LiveLaw (SC) 630

Prevention of Money Laundering Act, 2002 - ECIR vis-a-vis FIR - there is no need to formally register ECIR - ECIR is internal document - there is not requirement in law to furnish copy of ECIR to accused - non-recording of ECIR does not prevent the authorities from proceeding with inquiry/investigation for attachment - it is sufficient if at the time of arrest the person is informed the grounds on which the arrest is being made; sufficient compliance of A 22(1) of the Constitution; the Court before whom the accused is produced can call ED officers for relevant records. [Para 176-179] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002 - ED Manual - is internal document and in the nature of administrative orders - common public may not be entitled to access such confidential administrative instructions for internal guidance of ED - there is no investigation but inquiry akin to civil action of attachment - since the inquiry ends in identifying the offender and then they are prosecuted, Authorities can considered outlining some crucial procedures and explore the feasibility of placing document on official website of ED. [Para 180-181] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002 - Schedule of 2002 Act - classification or grouping of offences for treating the same as relevant for constituting offence of money- laundering is a matter of legislative policy. [Para 175-175A] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002 - Supreme Court upholds constitutionality of powers of Enforcement Directorate for arrest, search and seizure, attachment - Court upholds the constitutionality of reverse burden of proof (Section 24) and twin conditions of bail (Section 45). Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 17 - Searches and Seizures - 2002 Act is a self contained code - inbuilt safeguards present - only Director and officers not below the rank of Deputy Director can authorise officers to carry out search and seizure - provision to record reasons shows it requires application of mind - officer conducting search is to forward a copy of the reasons recorded and materials in his possession to the Adjudicating Authority in a sealed envelope - officer seizing property obligated to submit application before the Adjudicating Authority within 30 days for retention of record - officers carrying out search and seizure made accountable; can be punished under Section 62 - process of searches and seizure is not only for inquiry into the process of money-laundering, but also prevention - for strengthening mechanism Parliament has rightfully dropped the condition that no search shall be conducted unless there is a police report or a private complaint in relation to the scheduled offence. [Para 77-86] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 18 - Search of persons - officers to adhere to identical inbuilt safeguards as in exercise of power under Section 17 - search of person is a fair and reasonable procedure (search and seizure) - search to be carried out in presence of two witnesses - officers to prepare a list of record of seized property - search of a female person can be done only by a female - upon seizing property concerned office to submit application before Adjudicating Authority - opportunity to be given to concerned person to defend their property. [Para 87] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 19 - Arrest - inbuilt stringent safeguards - power to arrest on high-ranking officers - provision to record reason regarding involvement in money-laundering - grounds of arrest to be informed to the person at the time of making arrest - copy of order along with material to be sent to Adjudicating Authority - arrested person is required to be procedure in Special Court within 24 hours of arrest. [Para 88-90] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 24 - Burden of Proof - application not limited to proceedings before Special Court - to apply to proceedings before the Adjudicating Authority regarding confirmation of provisional attachment order and order of confiscation vesting the attached property in the Central Government - would also apply to proceedings before Special Court upon presentation of complaint by officer under Section 44(1)(b) - before the Adjudicating Authority it is not necessary to follow proof beyond reasonable doubt, but would apply before the Special Court - on establishing that there exists proceeds of crime and the person in involved/linked in any process or activity connected with such proceeds, a legal presumption would arise that the proceeds of crime are involved in money -laundering - the onus merely shifts on the person facing charges to rebut the legal presumption - the presumption under Section 24(b) is not a mandatory legal presumption; but presumption under Section 24(a) is. [Para 91-103] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 3 - offence of "money laundering" - widely worded; meant not only to investigate offence but also regulate it - involved in any process or activity with the proceeds of crime - including concealment, possession, acquisition, use, projecting/claiming tainted money to be untainted - all these processes or activities independently constitute offence of money laundering - projection/claiming proceeds of crime to be untainted is not the only process or activity which constitutes offence of money laundering - "and" proceeding "projection or claiming" is to be read as "or" - Explanation added by Finance Bill, 2019 - 2019 amendment to Section 3 is only clarificatory in nature - whether brought in by way of a Finance Bill or not would not affect the original main provision - relevant date under the Statute is not linked to the date on which the scheduled offence was committed, but the one on which the person indulged in the "process or activity" connect with proceeds of crime - authorised officers can prosecute for money laundering only when there exists proceeds of crime - authorised officers cannot proceed to attach and confiscate property on the basis of assumption but on the basis of credible evidence indicating involvement in "process or activity" with proceeds of crime. [Para 37-55] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 44(1)(a) - Special Courts -an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed - Section 44(1)(a) is directory in nature - it is read down to mean that the Special Court may exercise judicial discretion on case-to-case basis. [Para 104-114] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 45 - Bail - Post Nikesh Tarachand Shah v. Union of India (held Section 45 pre- 2018 Amendment as unconstitutional) the provision was not obliterated from the statute book; it merely held that the provision as it stood then was violative of A. 14 and 21 - it was open for the Parliament to cure the defect - once cured, the provision got revived - observations in Nikesh distinguishing the challenge to twin bail condition under PMLA from Kartar Singh v. State of Punjab dealing with TADA Act (calling PMLA less heinous than terrorism) overruled - twin condition though strict does not impose absolute restraint on garnet of bail - similar twin conditions is provided in several other special legislations - the twin bail conditions is also applicable for anticipatory bail - Section 436A CrPC providing maximum period for which under-trial prisoner can be detained, could be invoked by person accused under 2002 Act. [Para 115-149] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 5 - Attachment, adjudication and confiscation - inbuilt safeguards provided - only Director and officers not below rank of Deputy Director can issue provisional attachment order - only upon satisfaction that the person possesses proceeds of crime; is charged with commission of scheduled offence; there is likelihood of concealment, can the officer proceed to issue provisional attachment order - provisional order operates for 180 days - On issuing order of provisional attachment copy of the order to be forward to Adjudicating Authority - officer passing such order to forward copy of order to Adjudicating Authority - officer to file complaint within 30 days of the order - 2015 amendment has rightfully removed the requirement of registering scheduled offence and also show substantial progress in investigation to pass provisional attachment order - if scheduled offence is not registered with local police it is open to ED officers to proceed with provisional attachment while contemporaneously sending information to the police. [Para 56-70] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 50 - Summoning Power - the officers under the act conducts inquiry to ascertain existence of proceeds of crime and involvement of persons in money-laundering - PMLA is not a penal statute - Section 45(1A) clarifies that regular police officer cannot take cognisance of offence of money laundering - provisions of CrPC and Evidence Act does not apply to the inquiry carried out by the ED officers - it is a sui generis legislation, not only dealing with the prevention, detection, attachment, confiscation, vesting and making it obligatory for the banking companies, financial institutions and intermediaries to comply with certain essential formalities and make them accountable for failure thereof, and also permits prosecution of the persons found involved in the money- laundering activity - ED officers are not police officers - statement recorded by them cannot be hit by Articles 20(3) and 21. [Para 150-173] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 63 - Punishment for willfully providing false information causing arrest or search - not an unreasonable provision. [Para 174] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 8 - In the period between the confirmation of provisional attachment under Section 8 of the Prevention of Money Laundering Act, 2002 and the passing of the formal order of confiscation, the person interested in the immovable property can enjoy it - direction under Section 8(4) to take possession of the property before a formal order of confiscation is passed, merely on the basis of confirmation of provisional attachment order, should be an exception and not a rule - FAFT permits non-conviction based confiscation model. [Para 71-76] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Public Employment - Examinations - The advertisement contemplated the manner of filling up of the application form and also the attempting of the answer sheets, it has to be done in the manner so prescribed - Candidate used different language for filling up of the application form and the OMR answer book, therefore, his candidature was rightly rejected. (Para 14-18) Union of India v. Mahendra Singh, 2022 LiveLaw (SC) 630

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; Section 24(1) - Land Acquisition Act, 1894; Section 4(1) - Meaning of 'Initiation' for the purpose of Section 24(1) of the 2013 Act - Issuance and publication of Section 4(1) notification in the official gazette of the appropriate Government - When Section 24(1)(a) of the 2013 Act is applicable, the proceedings shall continue as per the L.A. Act - Only for the determination of compensation amount, the provisions of the 2013 Act shall be applied. (Para 27, 34) Haryana State Industrial and Infrastructure Development Corporation v. Deepak Aggarwal, 2022 LiveLaw (SC) 644

Securitisation and Reconstruction of Financial Assets and Enforcement Security Interest Act, 2002; Section 14 - The District Magistrate, Chief Metropolitan Magistrate is not a persona designata for the purposes of Section 14 of the SARFAESI Act - Additional District Magistrate and Additional Chief Metropolitan Magistrate can exercise powers under Section 14. (Para 9-12) R.D. Jain and Co. v. Capital First Ltd., 2022 LiveLaw (SC) 634

Securitisation and Reconstruction of Financial Assets and Enforcement Security Interest Act, 2002; Section 14 - Step to be taken by the CMM/DM under Section 14 is a ministerial step. While disposing of the application under Section 14 of the SARFAESI Act, no element of quasi ­judicial function or application of mind would require -The Magistrate has to adjudicate and decide the correctness of the information given in the application and nothing more. Therefore, Section 14 does not involve an adjudicatory process qua points raised by the borrower against the secured creditor taking possession of secured assets. (Para 8) R.D. Jain and Co. v. Capital First Ltd., 2022 LiveLaw (SC) 634

Securitisation and Reconstruction of Financial Assets and Enforcement Security Interest Act, 2002; Section 14 (1A) - it is open to the CMM/DM to appoint an advocate and authorise him/her to take possession of the secured assets and documents relating thereto and to forward the same to the secured creditor under Section 14(1A) of the SARFAESI Act. (Para 6.2) R.D. Jain and Co. v. Capital First Ltd., 2022 LiveLaw (SC) 634

Slum Areas (Improvement and Clearance) Act, 1973 (Karnataka); Section 20 - Constitutional Validity - Karnataka High Court struck down the provision as unconstitutional, in appeal, the Supreme Court held: High Court has dealt with the question of validity of Section 20 in a casual manner. That cannot be countenanced inasmuch as the Constitutional Court for answering the assail on this count, in the first place, need to examine the scheme of the 1973 Act, its objects and purposes as also the question: whether the payment of amount specified as three hundred times the property tax payable in respect of such land on the date of publication would be a permissible method of determination of the amount or is per se unjust, unfair or unreasonable - Impugned judgment set aside and remanded. State of Karnataka v. B.R. Muralidhar, 2022 LiveLaw (SC) 637

Subordinate Judiciary - Supreme Court directs pay hike for subordinate judiciary as per the recommendations of the Second National Judicial Pay Commission w.e.f January 1, 2016. All India Judges Association v. Union of India, 2022 LiveLaw (SC) 635

Surname - A surname refers to the name a person shares with other members of that person's family, distinguished from that person's given name or names; a family name. Surname is not only indicative of lineage and should not be understood just in context of history, culture and lineage but more importantly the role it plays is with regard to the social reality along with a sense of being for children in their particular environment. Homogeneity of surname emerges as a mode to create, sustain and display 'family. Akella Lalita v. Sri Konda Hanumantha Rao, 2022 LiveLaw (SC) 638

Surname - Andhra Pradesh HC direction to a mother who remarried another person after death of her first husband to restore surname of a child - Further direction that wherever the records permit, the name of the natural father shall be shown and if it is otherwise impermissible, the name of the present husband shall be mentioned as step-father - Allowing appeal, the Supreme Court observed: Nothing unusual in mother, upon remarriage having given the child the surname of her husband or even giving the child in adoption to her husband - The direction to include the name of the present husband as step-father in documents is almost cruel and mindless of how it would impact the mental health and self-esteem of the child - The mother being the only natural guardian of the child has the right to decide the surname of the child. She also has the right to give the child in adoption. Akella Lalita v. Sri Konda Hanumantha Rao, 2022 LiveLaw (SC) 638

NOMINAL INDEX

1. Akella Lalita v. Sri Konda Hanumantha Rao, 2022 LiveLaw (SC) 638
2. All India Haj Umrah Tour Organizer Association Mumbai v. Union of India, 2022 LiveLaw (SC) 632
3. All India Judges Association v. Union of India, 2022 LiveLaw (SC) 635
4. All Kerala Distributors Association v. State of Kerala, 2022 LiveLaw (SC) 639
5. Bhagwandas B. Ramchandani v. British Airways, 2022 LiveLaw (SC) 645
6. Daxaben v. State of Gujarat, 2022 LiveLaw (SC) 642
7. Ghulam Hassan Beigh v. Mohammad Maqbool Magrey, 2022 LiveLaw (SC) 631
8. Haryana State Industrial and Infrastructure Development Corporation v. Deepak Aggarwal, 2022 LiveLaw (SC) 644
9. Hemant Kumar Verma v. Employee State Insurance Corporation, 2022 LiveLaw (SC) 641
10. Imtiaz Ahmad v State of Uttar Pradesh, 2022 LiveLaw (SC) 636
11. Kanchan Kumari v. State of Bihar, 2022 LiveLaw (SC) 640
12. Mohammed Zubair v. State of NCT of Delhi, 2022 LiveLaw (SC) 629
13. R.D. Jain and Co. v. Capital First Ltd., 2022 LiveLaw (SC) 634
14. Rishi Pal Singh v. New India Assurance Co Ltd., 2022 LiveLaw (SC) 646
15. Rohith Thammana Gowda v. State of Karnataka, 2022 LiveLaw (SC) 643
16. State of Karnataka v. B.R. Muralidhar, 2022 LiveLaw (SC) 637
17. Union of India v. Mahendra Singh, 2022 LiveLaw (SC) 630
18. Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633