Supreme Court Weekly Digest With Nominal And Subject/Statute Wise Index-[September 19, 2022 – September 25, 2022]

Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017; Section 12, 14 - Code of Civil Procedure, 1908; Order 1 Rule 10(2), Order XLIII Rule 1 - Commercial Courts Act, 2015 - An order for addition of a party under Order 1 Rule 10(2) of the CPC is not appealable under section 14 of the Admiralty Act - An appeal does not lie to the Commercial Appellate Division of the High Court from an order of the Commercial Division (Single Bench) of the same High Court for addition of a party in an admiralty suit governed by the Admiralty Act - An intra-court appeal under the Admiralty Act to the Commercial Division of the High Court would lie from any judgment, decree or final order under the Admiralty Act or an interim order under the Admiralty Act relatable to the orders specified in Order 43, Rule 1 - An order for addition of a party under Order 1 Rule 10(2) of the CPC is not appealable under section 14 of the Admiralty Act - It could not possibly have been the legislative intent of the Admiralty Act to make all interim orders appealable. (Para 81-88) Owners and Parties Interested in the Vessel M.V. Polaris Galaxy v. Banque Cantonale De Geneve, 2022 LiveLaw (SC) 793

Bail - Post-conviction bail – All persons who have completed 10 years of sentence and appeal is not in proximity of hearing with no extenuating circumstances should be enlarged on bail. Sonadhar v. State of Chhattisgarh, 2022 LiveLaw (SC) 788

Bonded Labour System (Abolition) Act, 1976; Sections 16-17- For attracting the provision of Section 16 of the Act, the prosecution must establish that an accused has forced and compelled the victim to render bonded labour. This force and compulsion must be at the instance of the accused and the prosecution must establish the same beyond reasonable doubt. Similarly, under Section 17 of the Act, there is an obligation on the prosecution to establish that the accused has advanced a bonded debt to the victim. (Para 11) Selvakumar v. Manjula, 2022 LiveLaw (SC) 786

Code of Criminal Procedure, 1973; Section 167(2) - The failure to procure the presence of the accused either physically or virtually before the Court and the failure to inform him that the application made by the Public Prosecutor for the extension of time is being considered, is not a mere procedural irregularity. It is gross illegality that violates the rights of the accused under Article 21 - Prejudice is inherent and need not be established by the accused. (Para 30-31) Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat, 2022 LiveLaw (SC) 794

Constitution of India, 1950 - Supreme Court upholds Haryana Sikh Gurudwara (Management) Act, 2014 - Holds that Haryana State legislature has competence to enact the said Act - The Act does not violate the rights of Sikhs under Articles 25 and 26 of the Constitution - Since the affairs of the Sikh minority in the State are to be managed by the Sikhs alone, therefore, it cannot be said to be violative of any of the fundamental rights conferred under Articles 25 and 26 of the Constitution. Harbhajan Singh v. State of Haryana, 2022 LiveLaw (SC) 782

Constitution of India, 1950; Article 226 - Maharashtra Value Added Tax, 2002 - Central Sales Tax Act, 1956 - The Statute provide for the right of appeal against the assessment order passed by the Assessing Officer and against the order passed by the first appellate authority, an appeal/revision before the Tribunal - The High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India challenging the assessment order in view of the availability of statutory remedy under the Act - The question is not about the maintainability of the writ petition under Article 226 of the Constitution, but about the entertainability of the writ petition against the order of assessment by-passing the statutory remedy of appeal. (Para 6-8) State of Maharashtra v. Greatship (India) Ltd., 2022 LiveLaw (SC) 784

Constitution of India, 1950; Article 226 - The laws of limitation do not apply to exercise of jurisdiction under Article 226 - Relief under Article 226 being discretionary, the Courts might in their discretion refuse to entertain the Writ Petition, where there is gross delay on the part of the Writ Petitioner, particularly, where the relief sought would, if granted, unsettle things, which are already settled. (Para 26) State of Rajasthan v. O.P. Gupta, 2022 LiveLaw (SC) 785

Constitution of India, 1950; Article 254 - The question of repugnancy arises only if both the Parliament and the State legislature have made law with respect to any one of the matters enumerated in the Concurrent list (List III). (Para 18) Har Naraini Devi v. Union of India, 2022 LiveLaw (SC) 783

Consumer Protection Act, 1986 - Medical Negligence - The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed. Civil Hospital v. Manjit Singh, 2022 LiveLaw (SC) 781

Consumer Protection Act, 1986; Section 2(1)(o) - Doctors and hospitals who render service without any charge whatsoever to every person availing of the service would not fall within the ambit of 'service' under Section 2(1)(o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. Civil Hospital v. Manjit Singh, 2022 LiveLaw (SC) 781

Contract Act, 1872 - Contract of indemnity, contract of guarantee and pledge - The contract of indemnity is a contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself or by the conduct of any other person. In a contract of indemnity, a promisee acting within the scope of his authority is entitled to recover from the promisor all damages and all costs which he may incur. A contract of guarantee, on the other hand, is a promise whereby the promisor promises to discharge the liability of a third person in case of his default. The person who gives the guarantee is called the surety. The person in respect of whose default, the guarantee is given is the principal debtor and the person to whom the guarantee is given is the creditor. Anything done or any promise made for the benefit of the principal debtor may be a sufficient consideration to the surety for giving the guarantee. On the other hand, the bailment of goods as security for payment of a debt or performance of a promise is a pledge. (Para 35) Maitreya Doshi v. Anand Rathi Global Finance Ltd., 2022 LiveLaw (SC) 789

Control of Terrorism and Organised Crime Act, 2015 (Gujarat); Section 20(2) - Code of Criminal Procedure, 1973; Section 167(2) - Application for extension of time for investigation - Firstly, in the report of the Public Prosecutor, the progress of the investigation should be set out and secondly, the report must disclose specific reasons for continuing the detention of the accused beyond the said period of 90 days. Therefore, the extension of time is not an empty formality - The scope of the objections may be limited - The accused can always point out to the Court that the prayer has to be made by the Public Prosecutor and not by the investigating agency. Secondly, the accused can always point out the twin requirements of the report in terms of proviso added by sub­section (2) of Section 20 of the 2015 Act to sub­section (2) of Section 167 of CrPC. The accused can always point out to the Court that unless it is satisfied that full compliance is made with the twin requirements, the extension cannot be granted. (Para 28-29) Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat, 2022 LiveLaw (SC) 794

Control of Terrorism and Organised Crime Act, 2015 (Gujarat); Section 20(5) - In State of Maharashtra v. Bharat Shanti Lal Shah (2008) 13 SCC 5, it was held that the expression "or under any other Act" appearing in sub­section (5) of Section 21 of the MCOCA was violative of Articles 14 and 21 of the Constitution and, therefore, it must be struck down. Hence, the same expression used in sub­section (5) of Section 20 of the 2015 Act infringes Articles 14 and 21 of the Constitution. (Para 21) Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat, 2022 LiveLaw (SC) 794

Death Penalty - In all cases where imposition of capital punishment is a choice of sentence, aggravating circumstances would always be on record, and would be part of the prosecution's evidence, leading to conviction, whereas the accused can scarcely be expected to place mitigating circumstances on the record, for the reason that the stage for doing so is after conviction. This places the convict at a hopeless disadvantage, tilting the scales heavily against him. This court is of the opinion that it is necessary to have clarity in the matter to ensure a uniform approach on the question of granting real and meaningful opportunity, as opposed to a formal hearing, to the accused/convict, on the issue of sentence. Consequently, this court is of the view that a reference to a larger bench of five Hon'ble Judges is necessary for this purpose. Let this matter be placed before the Hon'ble Chief Justice of India for appropriate orders in this regard. In Re: Framing Guidelines regarding Potential Mitigating Circumstances to be considered while imposing Death Sentences, 2022 LiveLaw (SC) 777

Death Penalty - Is Same day sentencing proper? Supreme Court refers issue to 5-judge bench in view of conflicting judgments. In Re: Framing Guidelines regarding Potential Mitigating Circumstances to be considered while imposing Death Sentences, 2022 LiveLaw (SC) 777

Environment (Protection) Act, 1986 - Environmental Impact Assessment Notification 2006 - Ex post facto Environmental Clearance - EP Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible - Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operation. (Para 46-50) D. Swamy v. Karnataka State Pollution Control Board, 2022 LiveLaw (SC) 791

Insider trading – Profit motive – Mitigating factor – Distress sale – Securities and Exchange Board of India (SEBI) Act, 1992 (15 of 1992) – Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992 – Regulations 2(d), 2(e), 2(ha), 2(k), 3, 4 – Appeal under Section 15Z – Transaction likely to result in loss cannot be basis to accuse insider in possession of price-sensitive information of insider trading - Actual gain or loss immaterial – Motive for making a gain essential – MD & Chairman who sold shares to fund corporate debt restructuring (CDR) package before information about cancellation of shareholders' agreements disclosed to the public held not guilty of insider trading – Similar to a distress sale – Test applied, whether an attempt to take advantage of or encash the benefit of information in possession made – Not the same as mens rea - Merely because a person was in possession of unpublished price sensitive information at the time go trading in securities, it cannot be held that the transaction becomes the mischief of "insider trading", unless it is established that there was an intention to take advantage of the information. [Paras 28, 31, 35, 37, 38, 42] Securities and Exchange Board of India v. Abhijit Rajan, 2022 LiveLaw (SC) 787

Insolvency and Bankruptcy Code, 2016; Section 12A - National Company Law Tribunal Rules, 2016; Rule 11 - Section 12A clearly permits withdrawal of an application under Section 7 IBC that has been admitted - The question of approval of the Committee of Creditors by the requisite percentage of votes, can only arise after the Committee of Creditors is constituted - Before the Committee of Creditors is constituted, there is no bar to withdrawal by the applicant of an application admitted under Section 7 IBC - The settlement cannot be stifled before the constitution of the Committee of Creditors in anticipation of claims against the Corporate Debtor from third persons. The withdrawal of an application for CIRP by the applicant would not prevent any other financial creditor from taking recourse to a proceeding under IBC. The urgency to abide by the timelines for completion of the resolution process is not a reason to stifle the settlement - Rule 11 of the NCLT Rules enables the NCLT to pass orders for the ends of justice including order permitting an applicant for CIRP to withdraw its application and to enable a corporate body to carry on business with ease, free of any impediment. (Para 23-30) Ashok G. Rajani v. Beacon Trusteeship Ltd., 2022 LiveLaw (SC) 790

Insolvency and Bankruptcy Code, 2016; Section 7 - The approval of a resolution in respect of one borrower cannot certainly discharge a co-borrower - If there are two borrowers or if two corporate bodies fall within the ambit of corporate debtors, there is no reason why proceedings under Section 7 of the IBC cannot be initiated against both the Corporate Debtors - The same amount cannot be realised from both the Corporate Debtors. If the dues are realised in part from one Corporate Debtor, the balance may be realised from the other Corporate Debtor being the co-borrower. However, once the claim of the Financial Creditor is discharged, there can be no question of recovery of the claim twice over. (Para 36-37) Maitreya Doshi v. Anand Rathi Global Finance Ltd., 2022 LiveLaw (SC) 789

Interpretation of Statutes - When two or more enactments operating in the same field contain a non obstante clause stating that its provisions will have effect notwithstanding anything inconsistent therewith contained in any other law, the conflict has to be resolved upon consideration of the purpose and policy underlying the enactments - The rule that a non-obstante clause in a later statute prevails over the non-obstante clause in an earlier statute is not an absolute rule. The question of which provision prevails, would necessarily depend on the object of the enactment and, in particular, the object of giving overriding effect to the enactment or any specific provision thereof. (Para 68-70) Owners and Parties Interested in the Vessel M.V. Polaris Galaxy v. Banque Cantonale De Geneve, 2022 LiveLaw (SC) 793

Land Reforms Act, 1954 (Delhi); Section 50(a) - Constitutional Validity upheld - The Act is special law, dealing with fragmentation, ceiling, and devolution of tenancy rights over agricultural holdings only - The Contention re: Gender bias/ women empowerment rejected - There can be no challenge to the 1954 Act as the said legislation is included in the Ninth Schedule of the Constitution. Har Naraini Devi v. Union of India, 2022 LiveLaw (SC) 783

Legislation - Amendment - All amendments are deemed to apply prospectively unless expressly specified to apply retrospectively or intended to have been done so by the legislature. (Para 23) Har Naraini Devi v. Union of India, 2022 LiveLaw (SC) 783

Penal Code, 1860; Section 302 - Brutal Murder - Sentencing - In appropriate cases, imposing a fixed term sentence creates a possibility for the convict to 8 re-integrate into society after serving his/her sentence. It strikes a delicate balance between the victims' plea for justice - This fixed term sentence can only be by the High Court or this Court and not by the trial Court - If there is any circumstance favouring the accused such as lack of intention to commit the crime, possibility of reformation, young age of the accused, accused not being a menance to the society, no previous criminal record etc., the accused may avoid capital punishment - The crime is important but so is the criminal and hence the Supreme Court in recent past has substituted death penalty with fixed term sentences exceeding 14 years - The approach cannot be the vindictive but lack of appropriate sentence leaves the cry of justice of the society un-addressed apart from the fact that other persons who may have the propensity to carry out the crime feel they will get away with the lighter sentence, in case they are caught. State of Haryana v. Anand Kindoo, 2022 LiveLaw (SC) 780

Pension - Pension, is a lifelong benefit. Denial of pension is a continuing wrong. This Court cannot also be oblivious to the difficulties of a retired employee in approaching the Court, which could include financial constraints - Financial rules framed by the Government such as Pension Rules are capable of more interpretations than one, the Courts should lean towards that interpretation which goes in favour of the employee. (Para 27-28) State of Rajasthan v. O.P. Gupta, 2022 LiveLaw (SC) 785

Personal Law (Goan) – Inventory proceedings – Licitation – Owelty – Portuguese Civil Procedure Code – Chapter XVII (Articles 1369 to 1447) – Articles 1737, 2126, 2127 – Right to property of highest bidder in licitation heritable and not mere personal rights, even if no owelty demanded and paid – Court refused plea for reauction of disputed property – Demise of highest bidder before determination and payment of owelty amount – Held, not ground for setting aside the auction – Owelty only to be paid when demanded – Position and right as a successful bidder, as well as obligation to pay amount heritable by heirs and legal representatives – Amount determined to be paid by successors when called upon to do so. [Paras 18, 20-24] Ethel Lourdes D'Souza Lobo v. Lucio Neville Jude De Souza, 2022 LiveLaw (SC) 795

Precedents - A judgment delivered by a larger bench will prevail irrespective of the number of judges constituting the majority-In view of Article 145(5) of the Constitution of India concurrence of a majority of the judges at the hearing will be considered as a judgment or opinion of the Court. It is settled that the majority decision of a Bench of larger strength would prevail over the decision of a Bench of lesser strength, irrespective of the number of Judges constituting the majority. (Para 19) Trimurthi Fragrances (P) Ltd. v. Govt. of NCT of Delhi, 2022 LiveLaw (SC) 778

Transgender Persons (Protection of Rights) Act 2019 - It is necessary for the Central Government, in consultation with the National Council, to devise a policy framework in terms of which reasonable accommodation can be provided for transgender persons in seeking recourse to avenues of employment in establishments covered by the provisions of the 2019 Act.The provisions of the 2019 Act need to be implemented in letter and spirit by formulating appropriate policies. The Union Government must take the lead in this behalf and provide clear guidance and enforceable standards to all other entities, including, those of the Union Government, State Governments and establishments governed by the 2019 Act. (Para 8) Shanavi P onnusamy v. Ministry of Civil Aviation, 2022 LiveLaw (SC) 779

Transgender Rights - Transgender persons routinely face multiple forms of oppression, social exclusion and discrimination, especially in the field of healthcare, employment and education. Gender diverse persons, including transgender persons, continue to face barriers in accessing equal employment opportunities, especially in the formal sector, due to the operation of gender stereotypes. Gender stereotypes in the workplace disproportionately impact transgender persons for not subscribing to societal norms about appropriate 'feminine' and 'masculine' appearances and mannerisms. (Para 7) Shanavi P onnusamy v. Ministry of Civil Aviation, 2022 LiveLaw (SC) 779

NOMINAL INDEX

1. Ashok G. Rajani v. Beacon Trusteeship Ltd., 2022 LiveLaw (SC) 790
2. Bharat Sanchar Nigam Ltd. v. Tata Communications Ltd., 2022 LiveLaw (SC) 792
3. Civil Hospital v. Manjit Singh, 2022 LiveLaw (SC) 781
4. D. Swamy v. Karnataka State Pollution Control Board, 2022 LiveLaw (SC) 791
5. Ethel Lourdes D'Souza Lobo v. Lucio Neville Jude De Souza, 2022 LiveLaw (SC) 795
6. Har Naraini Devi v. Union of India, 2022 LiveLaw (SC) 783
7. Harbhajan Singh v. State of Haryana, 2022 LiveLaw (SC) 782
8. In Re: Framing Guidelines regarding Potential Mitigating Circumstances to be considered while imposing Death Sentences, 2022 LiveLaw (SC) 777
9. Jigar @ Jimmy Pravinchandra Adatiya v. State of Gujarat, 2022 LiveLaw (SC) 794
10. Maitreya Doshi v. Anand Rathi Global Finance Ltd., 2022 LiveLaw (SC) 789
11. Owners and Parties Interested in the Vessel M.V. Polaris Galaxy v. Banque Cantonale De Geneve, 2022 LiveLaw (SC) 793
12. Securities and Exchange Board of India v. Abhijit Rajan, 2022 LiveLaw (SC) 787
13. Selvakumar v. Manjula, 2022 LiveLaw (SC) 786
14. Shanavi P onnusamy v. Ministry of Civil Aviation, 2022 LiveLaw (SC) 779
15. Sonadhar v. State of Chhattisgarh, 2022 LiveLaw (SC) 788
16. State of Haryana v. Anand Kindoo, 2022 LiveLaw (SC) 780
17. State of Maharashtra v. Greatship (India) Ltd., 2022 LiveLaw (SC) 784
18. State of Rajasthan v. O.P. Gupta, 2022 LiveLaw (SC) 785
19. Trimurthi Fragrances (P) Ltd. v. Govt. of NCT of Delhi, 2022 LiveLaw (SC) 778