Supreme Court Weekly Digest With Nominal and Subject/Statute Wise Index [September 26, 2022 – October 2, 2022]

Code of Civil Procedure, 1908; Order XIV, Rule 2(2)(b) - Issue of limitation can be framed and determined as a preliminary issue in a case where it can be decided on admitted facts - Though limitation is a mixed question of law and facts it will shed the said character and would get confined to one of question of law when the foundational fact(s), determining the starting point of limitation is vividly and specifically made in the plaint averment - Tthe provisions under Order XIV Rule 2(1) and Rule 2(2)(b) permit to deal with and dispose of a suit in accordance with the decision on the preliminary issue. (Para 18, 26) Sukhbiri Devi v. Union of India, 2022 LiveLaw (SC) 810

Code of Civil Procedure, 1973; Order I Rule 9 - A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. It has been held that if a "necessary party" is not impleaded, the suit itself is liable to be dismissed - For being a necessary party, the twin test has to be satisfied. The first one is that there must be a right to some relief against such party in respect of the controversies involved in the proceedings. The second one is that no effective decree can be passed in the absence of such a party. (Para 17-20) Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Bhedi, 2022 LiveLaw (SC) 802

Code of Criminal Procedure, 1973; Section 125 - The husband is required to earn money even by physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute - Section 125 of Cr.P.C. was conceived to ameliorate the agony, anguish and financial suffering of a woman who is required to leave the matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children - The object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife, by providing her food, clothing, and shelter by a speedy remedy. (Para 9-13) Anju Garg v. Deepak Kumar Garg, 2022 LiveLaw (SC) 805

Code of Criminal Procedure, 1973; Section 157 (1) - The word "forthwith' in Section 157(1) of the Code is to be understood in the context of the given facts and circumstances of each case and a straight­jacket formula cannot be applied in all cases. But where ocular evidence is found to be unreliable and thus unacceptable, a long delay has to be taken note of by the Court. The mandate of Section 157(1) of the Code being clear, the prosecution is expected to place on record the basic foundational facts, such as, the Officer who took the first information report to the jurisdictional court, the authority which directed such a course of action and the mode by which it was complied. Explaining the delay is a different aspect than placing the material in compliance of the Code - The delay in forwarding the FIR may certainly indicate the failure of one of the external checks to determine whether the FIR was manipulated later or whether it was registered either to fix someone other than the real culprit or to allow the real culprit to escape. While every delay in forwarding the FIR may not necessarily be fatal to the case of the prosecution, Courts may be duty bound to see the effect of such delay on the investigation and even the creditworthiness of the investigation. (Para 61- 66) Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804

Code of Criminal Procedure, 1973; Section 53A - In cases where the victim of rape is alive and is in a position to testify in court, it may be possible for the prosecution to take a chance by not medically examining the accused. But in cases where the victim is dead and the offence is sought to be established only by circumstantial evidence, medical evidence assumes great importance. The failure of the prosecution to produce such evidence, despite there being no obstacle from the accused or anyone, will certainly create a gaping hole in the case of the prosecution and give rise to a serious doubt on the case of the prosecution. (Para 80) Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804

Code of Criminal Procedure, 1973; Section 53A, 164A - While Section 53A enables the medical examination of the person accused of rape, Section 164A enables medical examination of the victim of rape. Both these provisions are somewhat similar and can be said approximately to be a mirror image of each other. But there are three distinguishing features - discussed. (Para 79) Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804

Constitution of India, 1950 - Speaker can't deny pension and other benefits to MLA's while disqualifying them under 10th schedule. Gyanendra Kumar Singh v. Bihar Legislative Assembly Patna, 2022 LiveLaw (SC) 808

Constitution of India, 1950; Article 136 - Special Leave to appeal - Unless it is shown that exceptional and special circumstances exist; that substantial and grave injustice have been done and the case and question present features of sufficient gravity to warrant a review of the decision appealed against, this Court would not exercise its overriding powers under Article 136(1) of the Constitution. The wide discretionary power with which this Court is invested under Article 136 is to be exercised sparingly and in exceptional cases only. (Para 75) Satish Chandra Yadav v. Union of India, 2022 LiveLaw (SC) 798

Constitution of India, 1950; Article 32 - Writ petition maintainable on the ground that earlier judgment does not lay down the correct law-though the concept of finality of judgment has to be preserved, at the same time, the principle of ex debito justitiae cannot be given a go­bye. If the Court finds that the earlier judgment does not lay down a correct position of law, it is always permissible for this Court to reconsider the same and if necessary, to refer it to a larger Bench. (Para 41) HDFC Bank v. Union of India, 2022 LiveLaw (SC) 811

Criminal Investigation - There cannot be two investigating agencies with respect to the same FIRs/complaints arising out of the same incident/occurrence with respect to different co-accused - Supreme Court transfers FIRs against Times Now Anchor Navika Kumar over Prophet remarks to Delhi - Transfer applicable to Future FIRs likely to be registered over the same telecast. Navika Kumar v. Union of India, 2022 LiveLaw (SC) 796

Criminal Trial - Circumstantial Evidence - Court has to see whether the chain of circumstances is complete and unbroken and keep in mind five golden principles or the panchsheell. (Para 9) Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804

Criminal Trial - Circumstantial Evidence - In a case of circumstantial evidence, the Court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of an evidence and the evidence must point towards only one conclusion, which is the guilt of the accused - A very heavy duty is cast upon the prosecution to prove its case, beyond reasonable doubt - Parameters under which the case of circumstantial evidence is to be evaluated. Referred to Hanumant Govind Nargundkar & Anr. v. State of Madhya Pradesh AIR 1952 SC 343. (Para 12) Munikrishna @ Krishna v. State by UIsoor PS, 2022 LiveLaw (SC) 812

Evidence Act, 1872; Section 25 - Code of Criminal Procedure, 1973; Section 161 - Both the Trial Court and the Appellate Court went completely wrong in placing reliance on the voluntary statements of the accused and their videography statements - A confessional statement given by an accused before a Police officer is inadmissible as evidence - Statement given by an accused to police under Section 161 of CrPC is not admissible as evidence. (Para 13) Munikrishna @ Krishna v. State by UIsoor PS, 2022 LiveLaw (SC) 812

Judgment and Order - Judgment or decree btained by fraud is to be treated as a nullity - Non-disclosure of the relevant and material documents with a view to obtain an undue advantage would amount to fraud. (Para 21) Ram Kumar v. State of Uttar Pradesh, 2022 LiveLaw (SC) 806

Labour Law - Supreme Court directs reinstatement of watchman who was retrenched 20 years ago - Labour Court had directed him to be reinstated in 2010- High Court set aside the direction for reinstatement and modified it as a direction for lumpsum payment of 1 lakh compensation- Supreme Court held that the High Court's interference was unwarranted in the facts of the case - Had the respondent management chosen to accept the verdict, the appellant would have been spared the agony of waiting for more than 10 years. In such circumstances, the denial of backwages, has resulted in punishing him - So apart from reinstatement, the SC directs that the workman be paid backwages of from 2020 to 2022. Jeetubha Khansangji Jadeja v. Kuttch District Panchayat, 2022 LiveLaw (SC) 797

Limitation Act, 1963; Article 136 - Article 136 applies only when an application for execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court is to be filed. (Para 20) Sukhbiri Devi v. Union of India, 2022 LiveLaw (SC) 810

Medical Termination of Pregnancy Act, 1971 - Consent of woman's family not needed for abortion, doctors cannot impose extra-legal conditions. X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022 LiveLaw (SC) 809

Medical Termination of Pregnancy Act, 1971 - Rape includes "marital rape" for the purposes of MTP Act, wife conceiving out of forced sex can seek abortion. X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022 LiveLaw (SC) 809

Medical Termination of Pregnancy Act, 1971 - State must create awareness among public about safe sexual practises, ensure access to affordable contraceptives. X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022 LiveLaw (SC) 809

Medical Termination of Pregnancy Act, 1971 - Teenage Pregnancies - Doctor need not disclose identity of minor girl seeking abortion in information given to police. X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022 LiveLaw (SC) 809

Penal Code, 1860; Section 302 and 376 - Rape and Murder of Six-Year-Old Girl - Appellant was convicted and sentenced to death - Acquitted - There are seriously inherent contradictions in the statements made by prosecution witnesses and both the Trial Court and the High Court have overlooked it completely - Court cannot make someone, a victim of injustice, to compensate for the injustice to the victim of a crime. Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804

Pleadings - Misquoting or non-quoting of a provision by itself will not make an order bad so long as the relevant enabling provision is in existence and it was correctly applied though without specifically mentioning it. (Para 25) Sukhbiri Devi v. Union of India, 2022 LiveLaw (SC) 810

Practice and Procedure - Even after more than three months from pronouncement of the order by the High Court, the reasons are not forthcoming and are not available with either of the parties - A party to the litigation cannot be expected to wait indefinitely for availability of the reasons for the order of the Court - Referred to Anil Rai v. State of Bihar (2001) 7 SCC 318 and State of Punjab and Others v. Jagdev Singh Talwandi (1984) 1 SCC 596 - Guidelines and observations therein remain fundamental to the course of dispensation of justice in any cause before the Court and the principle set out therein need to be applied with necessary variation, as may be necessary in the given fact situation of any particular case. K. Madan Mohan Rao v. Bheemrao Baswanthrao Patil, 2022 LiveLaw (SC) 803

Precedent - A judgment cannot be interpreted and applied to fact situations by reading it as a statute. One cannot pick up a word or sentence from a judgment to construe that it is the ratio decidendi on the relevant aspects of the case. (Para 7) Balkrishna Rama Tarle v. Phoenix ARC Pvt. Ltd., 2022 LiveLaw (SC) 799

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988 - Detention - If there is unreasonable delay between the date of the order of detention & actual arrest of the detenu and in the same manner from the date of the proposal and passing of the order of detention, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the "live and proximate link" between the grounds of detention and the purpose of detention is snapped in arresting the detenu. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case. (Para 20) Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Narcotic Drugs and Psychotropic Substances Act, 1986; Section 37 - If detenue was ordered to be released on bail despite the rigours of Section 37 of the NDPS Act, 1985, then the same is suggestive that the Court concerned might not have found any prima facie case against him. (Para 23) Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813

Preventive Detention - It emerges that the requisite subjective satisfaction, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influence his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. (Para 26) Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813

Preventive Detention - The preventive detention is a serious invasion of personal liberty and the normal methods open to a person charged with commission of any offence to disprove the charge or to prove his innocence at the trial are not available to the person preventively detained and, therefore, in prevention detention jurisprudence whatever little safeguards the Constitution and the enactments authorizing such detention provide assume utmost importance and must be strictly adhered to. (Para 28) Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813

Public Employment - Suppression of criminal proceedings - Principles to be applied - a) Each case should be scrutinised thoroughly by the public employer concerned, through its designated officials–more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society's security. b) Even in a case where the employee has made declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents, and cannot be compelled to appoint the candidate. The acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. It would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post. c) The suppression of material information and making a false statement in the verification Form relating to arrest, prosecution, conviction etc., has a clear bearing on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service. d) The generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders' conduct, should not enter the judicial verdict and should be avoided. e) The Court should inquire whether the Authority concerned whose action is being challenged acted mala fide. f) Is there any element of bias in the decision of the Authority? g) Whether the procedure of inquiry adopted by the Authority concerned was fair and reasonable? (Para 69) Satish Chandra Yadav v. Union of India, 2022 LiveLaw (SC) 798

Reserve Bank of India - Right to Information Act, 2005 - Disclosure of defaulters list, inspection reports etc in relation to banks - Right to Privacy- Supreme Court expresses prima facie doubts about its 2015 judgment in the case Reserve Bank of India v Jayantilal N. Mistry which had held that the Reserve Bank of India was obliged to disclose defaulters list, inspection reports, annual statements etc., related to banks under the Right to Information Act - Says the judgment did not take into consideration the aspect of balancing the right to information and the right to privacy. HDFC Bank v. Union of India, 2022 LiveLaw (SC) 811

Right to Privacy - In view of the judgment of this Court in the case of Jayantilal N. Mistry, the RBI is entitled to issue directions to the petitioners/Banks to disclose information even with regard to the individual customers of the Bank. In effect, it may adversely affect the individuals' fundamental right to privacy. (Para 39) HDFC Bank v. Union of India, 2022 LiveLaw (SC) 811

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; Section 14 - The powers exercisable by CMM/DM under Section 14 of the SARFAESI Act are ministerial step and Section 14 does not involve any adjudicatory process qua points raised by the borrowers against the secured creditor taking possession of the secured assets - Once all the requirements under Section 14 of the SARFAESI Act are complied with/satisfied by the secured creditor, it is the duty cast upon the CMM/DM to assist the secured creditor in obtaining the possession as well as the documents related to the secured assets even with the help of any officer subordinate to him and/or with the help of an advocate appointed as Advocate Commissioner- At that stage, the CMM/DM is not required to adjudicate the dispute between the borrower and the secured creditor and/or between any other third party and the secured creditor with respect to the secured assets and the aggrieved party to be relegated to raise objections in the proceedings under Section 17 of the SARFAESI Act, before Debts Recovery Tribunal. (Para 5.2) Balkrishna Rama Tarle v. Phoenix ARC Pvt. Ltd., 2022 LiveLaw (SC) 799

Service Law - Leave encashment is part of salary. (Para 18) Jagdish Prasad Saini v. State of Rajasthan, 2022 LiveLaw (SC) 801

Specific Relief Act, 1963 - Suit for injunction simplicitor on the basis of unregistered agreement to sell - The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could have been passed. The plaintiff cannot get the relief by clever drafting - The plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession. (Para 6) Balram Singh v. Kelo Devi, 2022 LiveLaw (SC) 800

Specific Relief Act, 1963 - Suit for specific performance - The court should look at all the relevant circumstances including the time limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised - While exercising its discretion, the court should bear in mind that when the parties prescribe certain time limit(s) for taking steps by one or the other party, it must have some significance and that the said time limit(s) cannot be ignored altogether on the ground that time is not the essence of the contract. (Para 12) Kolli Satyanarayana v. Valuripalli Kesava Rao Chowdary, 2022 LiveLaw (SC) 807

Specific Relief Act, 1963 - Suit for specific performance - When suit property was jointly owned by the defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the defendant's wife and three sons without impleading them. (Para 19) Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Bhedi, 2022 LiveLaw (SC) 802

Voluntary Rural Education Service Rules, 2010 (Rajasthan); Rule 5 (viii) - The condition in clause (viii) of Rule 5 i.e., carry forward of balance privilege leave, is barred and requiring employees to seek encashment from their previous employer, i.e., aided institutions, is an arbitrary and unconscionable condition, which cannot be enforced. (Para 20) Jagdish Prasad Saini v. State of Rajasthan, 2022 LiveLaw (SC) 801

NOMINAL INDEX

1. Anju Garg v. Deepak Kumar Garg, 2022 LiveLaw (SC) 805
2. Balkrishna Rama Tarle v. Phoenix ARC Pvt. Ltd., 2022 LiveLaw (SC) 799
3. Balram Singh v. Kelo Devi, 2022 LiveLaw (SC) 800
4. Chotkau v. State of Uttar Pradesh, 2022 LiveLaw (SC) 804
5. Gyanendra Kumar Singh v. Bihar Legislative Assembly Patna, 2022 LiveLaw (SC) 808
6. HDFC Bank v. Union of India, 2022 LiveLaw (SC) 811
7. Jagdish Prasad Saini v. State of Rajasthan, 2022 LiveLaw (SC) 801
8. Jeetubha Khansangji Jadeja v. Kuttch District Panchayat, 2022 LiveLaw (SC) 797
9. K. Madan Mohan Rao v. Bheemrao Baswanthrao Patil, 2022 LiveLaw (SC) 803
10. Kolli Satyanarayana v. Valuripalli Kesava Rao Chowdary, 2022 LiveLaw (SC) 807
11. Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Bhedi, 2022 LiveLaw (SC) 802
12. Munikrishna @ Krishna v. State by UIsoor PS, 2022 LiveLaw (SC) 812
13. Navika Kumar v. Union of India, 2022 LiveLaw (SC) 796
14. Ram Kumar v. State of Uttar Pradesh, 2022 LiveLaw (SC) 806
15. Satish Chandra Yadav v. Union of India, 2022 LiveLaw (SC) 798
16. Sukhbiri Devi v. Union of India, 2022 LiveLaw (SC) 810
17. Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813
18. X v. Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022 LiveLaw (SC) 809