Supreme Court Weekly Digest With Nominal And Statute/Subject Wise Index [August 7 to August 14, 2022]

Code of Criminal Procedure, 1973; Section 156(3) - In cases alleging sexual harassment, sexual assault or any similar criminal allegation wherein the victim has possibly already been traumatized, the Courts should not further burden the complainant and should press upon the police to investigate. Due regard must be had to the fact that it is not possible for the complainant to retrieve important evidence regarding her complaint. (Para 25) XYZ v. State of Maharashtra, 2022 LiveLaw (SC) 676

Code of Criminal Procedure, 1973; Section 156(3) - Magistrate has discretion in directing the police to investigate or proceeding with the case as a complaint case. But this discretion cannot be exercised arbitrarily and must be guided by judicial reasoning - Where not only does the Magistrate find the commission of a cognizable offence alleged on a prima facie reading of the complaint but also such facts are brought to the Magistrate's notice which clearly indicate the need for police investigation, the discretion granted in Section 156(3) can only be read as it being the Magistrate's duty to order the police to investigate. In cases wherein, there is alleged to be documentary or other evidence in the physical possession of the accused or other individuals which the police would be best placed to investigate and retrieve using its powers under the CrPC, the matter ought to be sent to the police for investigation. (Para 24) XYZ v. State of Maharashtra, 2022 LiveLaw (SC) 676

Code of Criminal Procedure, 1973; Section 300 (1) - Indian Penal Code, 1860; Section 420 - Negotiable Instruments Act, 1881; Section 138 - Whether on similar set of allegations of fact the accused can be tried for an offence under NI Act which is special enactment and also for offences under IPC unaffected by the prior conviction or acquittal and, the bar of Section 300(1) Cr.P.C. would attract for such trial? - Referred to larger bench. J. Vedhasingh v. R.M. Govindan, 2022 LiveLaw (SC) 669

Code of Criminal Procedure, 1973; Section 311 - Application cannot be dismissed merely on the ground that it will lead to filling in the lacunae of the prosecution's case - Even the said reason cannot be an absolute bar to allowing an application under Section 311 - The resultant filling of loopholes on account of allowing the application is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence - It is the duty of the criminal court to allow the prosecution to correct an error in interest of justice. (Para 38 - 40) Varsha Garg v. State of Madhya Pradesh, 2022 LiveLaw (SC) 662

Code of Criminal Procedure, 1973; Section 311 - Scope - Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court - The broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest. (Para 28 - 32) Varsha Garg v. State of Madhya Pradesh, 2022 LiveLaw (SC) 662

Code of Criminal Procedure, 1973; Section 311 - The Court is vested with a broad and wholesome power to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. (Para 42) Varsha Garg v. State of Madhya Pradesh, 2022 LiveLaw (SC) 662

Code of Criminal Procedure, 1973; Section 397, 401 - Any order which substantially affects the right of the parties cannot be said to be an "interlocutory order - The expression "interlocutory order" denotes orders of a purely interim or temporary nature which do not decide or touch upon the important rights or liabilities of parties. (Para 12) Honnaiah T.H. v. State of Karnataka, 2022 LiveLaw (SC) 672

Code of Criminal Procedure, 1973; Section 397, 401 - Maintainability of revision petition at the instance of de facto complainant - As the power of revision can be exercised by the High Court even suo moto, there can be no bar on a third party invoking the revisional jurisdiction and inviting the attention of the High Court that an occasion to exercise the power has arisen - The view of the High Court that a victim/ complainant needs to restrict his revision petition to challenging final orders either acquitting the accused or convicting the accused of a lesser offence or imposing inadequate compensation (three requirements mentioned under Section 372 CrPC) is unsustainable, so long as the revision petition is not directed against an interlocutory order. (Para 14 - 15) Honnaiah T.H. v. State of Karnataka, 2022 LiveLaw (SC) 672

Code of Criminal Procedure, 1973; Section 397, 401 - The order of the trial court declining to mark the statement of the informant as an exhibit is an intermediate order affecting important rights of the parties and cannot be said to be purely of an interlocutory nature - if the statement of the informant is not permitted to be marked as an exhibit, it would amount to a gross miscarriage of justice. (Para 13) Honnaiah T.H. v. State of Karnataka, 2022 LiveLaw (SC) 672

Companies Act 2013 - Centre directed to ensure that the term of NCLT members appointed in future is 5 years as per Section 413 - We however direct that in making appointments to the NCLT in the future, the Union Government shall be bound by the statutory provisions embodied in Section 413 of the Companies Act 2013. (Para 27, 28) National Company Law Tribunal Bar Association v. Union of India, 2022 LiveLaw (SC) 665

Companies Act 2013 - Term of members of National Company Law Tribunal - Section 413- Appointment of persons as members of the NCLT for a period of three years is not contemplated by the provisions of Section 413(1). An administrative notification for appointment has to be consistent with the statute which governs appointments to the Tribunal. (Para 17) National Company Law Tribunal Bar Association v. Union of India, 2022 LiveLaw (SC) 665

Constitution of India, 1950; Article 136 - Criminal appeal - The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all. (Para 8) State of Rajasthan v. Kistoora Ram, 2022 LiveLaw (SC) 663

Constitution of India, 1950; Article 136 - Industrial Disputes Act, 1947; Section 25F - Whether a workman was gainfully employed or not is again a question of fact, and the finding of the Tribunal as upheld by the High Court, cannot be interfered with by the Supreme Court in exercising its power under Article 136 of the Constitution of India. (Para 18) Armed Forces Ex Officers Multi Services Cooperative Society Ltd. v. Rashtriya Mazdoor Sangh (INTUC), 2022 LiveLaw (SC) 674

Contract Act 1872; Section 25(3) - it is clear that any agreement to pay a time barred debt, would be enforceable in law, within three years from the due date of payment, in terms of such agreement. Kotak Mahindra Bank Limited v. Kew Precision Parts Pvt. Ltd., 2022 LiveLaw (SC) 673

Criminal Trial - Circumstantial Evidence - The chain of evidence has to be so complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused - The circumstances should be of a conclusive nature and tendency and should exclude every possible hypothesis except the one to be proved - The accused 'must be' and not merely 'may be' guilty before a Court can convict - Suspicion, however strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt. (Para 18-20) Ram Niwas v. State of Haryana, 2022 LiveLaw (SC) 670

Criminal Trial - Extra Judicial Confession - When there is a case hanging on an extra­judicial confession, corroborated only by circumstantial evidence, then the courts must treat the same with utmost caution. (Para 15) Ram Niwas v. State of Haryana, 2022 LiveLaw (SC) 670

Criminal Trial - Extra­judicial confession was a weak piece of evidence and unless there was some corroboration, the conviction solely on the basis of extra­judicial confession could not be sustained. (Para 10) State of Rajasthan v. Kistoora Ram, 2022 LiveLaw (SC) 663

Industrial Disputes Act, 1947 - Jurisdiction of civil court not ousted when the matter relates to correction of date of birth - Jurisdiction of the civil court is not ousted, as this is not a case relating to enforcement of a right or an obligation under the Industrial Disputes Act, 1947. Tulshi Choudhary v. Steel Authority of India Ltd., 2022 LiveLaw (SC) 668

Industrial Disputes Act, 1947; Section 25F - If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. (Para 19) Armed Forces Ex Officers Multi Services Cooperative Society Ltd. v. Rashtriya Mazdoor Sangh (INTUC), 2022 LiveLaw (SC) 674

Industrial Disputes Act, 1947; Section 25F - Retrenchment - Principle of law that reemployment of retrenched workmen does not entitle them to claim continuity of service - This principle will only apply to cases where the retrenchment is bona fide - When retrenchment is not bona fide and once the orders of retrenchment are set aside, the workmen will naturally be entitled to continuity of service with order of back wages as determined by a Tribunal or a Court of law. (Para 16) Armed Forces Ex Officers Multi Services Cooperative Society Ltd. v. Rashtriya Mazdoor Sangh (INTUC), 2022 LiveLaw (SC) 674

Industrial Disputes Act, 1947; Section 25F - Retrenchment - Principle that a policy decision for re-organising the business based on economic considerations is within an enterprise's proprietary decision and retrenchment in this context must be accepted as an inevitable consequence - The material requirement of bona fide of the decision - When the retrenchment seems to have been imposed as retribution against the workmen for going on a strike, this principle will not apply. (Para 15) Armed Forces Ex Officers Multi Services Cooperative Society Ltd. v. Rashtriya Mazdoor Sangh (INTUC), 2022 LiveLaw (SC) 674

Insolvency and Bankruptcy Code 2016 - There can be no dispute with the proposition that the period of limitation for making an application under Section 7 or 9 of the IBC is three years from the date of accrual of the right to sue, that is, the date of default. (Para 56) Kotak Mahindra Bank Limited v. Kew Precision Parts Pvt. Ltd., 2022 LiveLaw (SC) 673

Insolvency and Bankruptcy Code 2016 -There is no specific period of limitation prescribed in the Limitation Act, 1963, for an application under the IBC, before the Adjudicating Authority (NCLT). An application for which no period of limitation is provided anywhere else in the Schedule to the Limitation Act, is governed by Article 137 of the Schedule to the said Act. Under Article 137 of the Schedule to the Limitation Act, the period of limitation prescribed for such an application is three years from the date of accrual of the right to apply. (Para 55) Kotak Mahindra Bank Limited v. Kew Precision Parts Pvt. Ltd., 2022 LiveLaw (SC) 673

Insolvency and Bankruptcy Code, 2016; Section 7(5)(b) - when the Adjudicating Authority is satisfied that default has not occurred or the application is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application - provided it shall, before rejecting the application, give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority - the provision would extent to appeals - appeal is the continuation of original proceedings. (Para 70) Kotak Mahindra Bank Limited v. Kew Precision Parts Pvt. Ltd., 2022 LiveLaw (SC) 673

Limitation Act, 1963; Section 18 - As per Section 18 of Limitation Act, an acknowledgement of present subsisting liability, made in writing in respect of any right claimed by the opposite party and signed by the party against whom the right is claimed, has the effect of commencing a fresh period of limitation from the date on which the acknowledgement is signed. Such acknowledgement need not be accompanied by a promise to pay expressly or even by implication. However, the acknowledgement must be made before the relevant period of limitation has expired. (Para 62) Kotak Mahindra Bank Limited v. Kew Precision Parts Pvt. Ltd., 2022 LiveLaw (SC) 673

Motor Vehicles Act, 1988; Section 166 - If the daughters of the deceased have not been impleaded as claimants, it is immaterial as the amount of compensation payable by the tortfeasor will not get enhanced because of the daughters being party to the claim application. It is since the daughters are married, the mother has not impleaded, the daughters as the claimants. It is not really of any consequence. (Para 11) Janabai Dinkarrao Ghorpade v. ICICI Lambord Issurance Company Ltd., 2022 LiveLaw (SC) 666

Motor Vehicles Act, 1988; Section 166 - Rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 - It has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. (Para 10) Janabai Dinkarrao Ghorpade v. ICICI Lambord Issurance Company Ltd., 2022 LiveLaw (SC) 666

Motor Vehicles Act, 1988; Section 166 - The compensation under the head on account of loss of love and affection is not permissible but compensation on account of spousal consortium for wife and for the parental consortium for children is admissible. (Para 13) Janabai Dinkarrao Ghorpade v. ICICI Lambord Issurance Company Ltd., 2022 LiveLaw (SC) 666

Narcotic Drugs and Psychotropic Substances Act, 1985; Sections 20(b)(ii)(C), 32B - While imposing higher than the minimum punishment, such of the factors which are to be taken into consideration have been provided under Section 32B of the NDPS Act - The old age of the accused, who is a poor illiterate lady completely unaware of the consequences - Sentence reduced. Budhiyarin Bai v. State of Chhattisgarh, 2022 LiveLaw (SC) 667

Penal Code, 1860; Section 300 Exception 1 - Whether there was a grave and sudden provocation which would lead an accused to lose his power of self-control would depend upon the facts and circumstances of each case. It cannot be disputed that how a person responds to a particular situation would depend upon the temperament of a particular person. A hot-tempered person may react differently as compared to a cool-headed person. (Para 8) Yatendrasingh Ajabsingh Chauhan v. State of Maharashtra, 2022 LiveLaw (SC) 664

Penal Code, 1860; Section 300, 302 - Whether the accused had an intention to commit the murder of the deceased or not would depend upon a combination of several factors. There cannot be a straight­jacket formula for deciding whether there was intention to commit the murder or not. (Para 7-8) Yatendrasingh Ajabsingh Chauhan v. State of Maharashtra, 2022 LiveLaw (SC) 664

Precedents - Judicial decorum demands that if judgments passed by two judges' bench of equal strength are conflicting, the issue of law involved must be referred to a larger bench as the same is desirable to avoid confusion and maintain consistency of law. (Para 12) J. Vedhasingh v. R.M. Govindan, 2022 LiveLaw (SC) 669

Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (Uttar Pradesh); Rule 5 - Suitable Employment - The words "suitable employment" must be understood with reference to the post held by the deceased employee. The superior qualification held by a dependent cannot determine the scope of the words "suitable employment". (Para 10) Suneel Kumar v. State of U.P., 2022 LiveLaw (SC) 675

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; Section 17 - The reason for providing a time limit of 45 days for filing an application under Section 17 can easily be inferred from the purpose and object of the enactment - SARFAESI Act is enacted for quick enforcement of the security. (Para 12) Bank of Baroda v. Parasaadilal Tursiram Sheetgrah Pvt. Ltd., 2022 LiveLaw (SC) 671

Trial in cases of Sexual Harassment/Violence - The importance of courts dealing with complainants of sexual harassment and sexual assault in a sensitive manner reiterated- Guidelines: a. Allowing proceedings to be conducted in camera, where appropriate, either under Section 327 CrPC or when the case otherwise involves the aggrieved person (or other witness) testifying as to their experience of sexual harassment / violence; b. Allowing the installation of a screen to ensure that the aggrieved woman does not have to see the accused while testifying or in the alternative, directing the accused to leave the room while the aggrieved woman's testimony is being recorded; c. Ensuring that the counsel for the accused conducts the cross-examination of the aggrieved woman in a respectful fashion and without asking inappropriate questions, especially regarding the sexual history of the aggrieved woman. Cross-examination may also be conducted such that the counsel for the accused submits her questions to the court, who then poses them to the aggrieved woman; d. Completing cross-examination in one sitting, as far as possible. (Para 30-35) XYZ v. State of Maharashtra, 2022 LiveLaw (SC) 676

Tribunal appointments - Court refuses to entertain the challenge made by the NCLT Bar Association against the Centre's 2019 notification fixing the term of members as 3 years, as the members themselves have not challenged the same-The issue in regard to the term of appointment being less than the term prescribed statutorily has only been raised towards the tail end of the tenure and by the Bar Association and not the Members themselves. Entertaining the submissions of the petitioner would incidentally lead the Court into an evaluation of the suitability, character and performance of individual Members in a petition to which they are not parties. Such an exercise would, in the circumstances, be wholly inappropriate - The Bar Association cannot have a choice in regard to who should be a Member of the Tribunal. (Para 22, 26) National Company Law Tribunal Bar Association v. Union of India, 2022 LiveLaw (SC) 665

NOMINAL INDEX

1. Armed Forces Ex Officers Multi Services Cooperative Society Ltd. v. Rashtriya Mazdoor Sangh (INTUC), 2022 LiveLaw (SC) 674
2. Bank of Baroda v. Parasaadilal Tursiram Sheetgrah Pvt. Ltd., 2022 LiveLaw (SC) 671
3. Budhiyarin Bai v. State of Chhattisgarh, 2022 LiveLaw (SC) 667
4. Honnaiah T.H. v. State of Karnataka, 2022 LiveLaw (SC) 672
5. J. Vedhasingh v. R.M. Govindan, 2022 LiveLaw (SC) 669
6. Janabai Dinkarrao Ghorpade v. ICICI Lambord Issurance Company Ltd., 2022 LiveLaw (SC) 666
7. Kotak Mahindra Bank Limited v. Kew Precision Parts Pvt. Ltd., 2022 LiveLaw (SC) 673
8. National Company Law Tribunal Bar Association v. Union of India, 2022 LiveLaw (SC) 665
9. Ram Niwas v. State of Haryana, 2022 LiveLaw (SC) 670
10. State of Rajasthan v. Kistoora Ram, 2022 LiveLaw (SC) 663
11. Suneel Kumar v. State of U.P., 2022 LiveLaw (SC) 675
12. Tulshi Choudhary v. Steel Authority of India Ltd., 2022 LiveLaw (SC) 668
13. Varsha Garg v. State of Madhya Pradesh, 2022 LiveLaw (SC) 662
14. XYZ v. State of Maharashtra, 2022 LiveLaw (SC) 676
15. Yatendrasingh Ajabsingh Chauhan v. State of Maharashtra, 2022 LiveLaw (SC) 664