Supreme Court Weekly Digest With Nominal And Subject/Statute Wise Index [October 24 – 31, 2022]

Code of Criminal Procedure, 1973; Section 406 - Negotiable Instruments Act, 1881; Section 138 - Transfer Petition filed by a woman-accused seeking transfer of cheque bounce complaint - A complaint under Section 138 cannot be transferred as per the convenience of the accused - Being a woman and senior citizen, she can always seek exemption from personal appearance - Directed Trial Judge to favourable consider application if made by the petitioner for grant of exemption - The Trial Judge shall compel the petitioner to appear only when her presence is absolutely mandatory for the conduct of the trial. S. Nalini Jayanthi v. M. Ramasubba Reddy, 2022 LiveLaw (SC) 880

Code of Criminal Procedure, 1973; Section 438 - Anticipatory Bail - Anticipatory bail granted to the accused only till framing of the charge - It is the impugned order which would reflect the mind of the judge as to what were the peculiar facts and circumstances which warranted limiting the anticipatory bail for a particular period. The perusal of the entire order would reveal that there is no discussion at all with regard to the same - Part of the order which restricts the anticipatory bail upto framing of charge is quashed and set aside. Tarun Aggarwal v. Union of India, 2022 LiveLaw (SC) 885

Code of Criminal Procedure, 1973; Section 482 – Inherent powers of High Court – Accused cannot be made to pay ad interim victim compensation by the High Court in the exercise of their inherent powers as a precondition to get anticipatory bail without reasonable justification – Held, there was no reasonable justification for the High Court to call upon the appellant to submit a demand draft of Rs. 10 lakhs in availing the benefit of pre-arrest bail – Appeal allowed. Ravikant Srivastava @ Ravi Kant Shrivastava v. State of Jharkhand, 2022 LiveLaw (SC) 877

Code of Criminal Procedure, 1973; Section 482 - Negotiable Instruments Act, 1881; Sections 138,139 - Whether the cheque in question had been issued for a time barred debt or not, itself prima facie, is a matter of evidence and could not have been adjudicated in an application filed by the accused under Section 482 of the CrPC. Yogesh Jain v. Sumesh Chadha, 2022 LiveLaw (SC) 879

Constitution of India, 1950 - Court's duty to protect constitutional values - Court is charged with the duty to protect the fundamental rights and also preserve the constitutional values and the secular democratic character of the nation and in particular, the rule of law. Shaheen Abdullah v. Union of India, 2022 LiveLaw (SC) 872

Constitution of India, 1950; Article 136 - Criminal Appeal - Circumstances under which an appeal would be entertained by Supreme Court from an order of acquittal passed by a High Court summarised. (Para 45 - 46) Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887

Consumer Protection Act, 1986 - Insurance claims - An insurance company cannot take a defense which did not form the basis of repudiation of the claim. (Para 13-15) JSK Industries Pvt. Ltd. v. Oriental Insurance Company Ltd., 2022 LiveLaw (SC) 884

Cooperative Societies Act, 1969 (Kerala); Section 40(1)(a) - A member of the society executing the document in his own capacity or in the capacity of a Guardian or a minor shall not be entitled to the benefit of remission of stamp duty - The benefit is available only in respect of instruments executed by or on behalf of a society or by an officer or member thereof and instrument so executed should be relating to the business of the society. (Para 8-9) Kerala Land Reforms & Development Co-operative Society Ltd. v. District Registrar (General), 2022 LiveLaw (SC) 882

Criminal Cases - Disposal of criminal cases by resorting to the triple method of plea bargaining, compounding of offences and under the Probation of Offenders Act, 1958 - Guidelines issued. Re: Policy Strategy for Grant of Bail, 2022 LiveLaw (SC) 889

Criminal Trial - Circumstantial Evidence - In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. (Para 47 - 49) Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887

Criminal Trial - Extra judicial confession - A weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance like the case in hand. The Courts generally look for an independent reliable corroboration before placing any reliance upon an extra judicial confession - Admissibility and evidentiary value of extra judicial confession. (Para 54 - 58) Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887

Criminal Trial - Factors responsible for witnesses turning hostile - Referred to Ramesh v. State of Haryana (2017) 1 SCC 529 - Witnesses who know the deceased victim may turn hostile because they wish to move on with their lives. Testifying as to the circumstances surrounding the rape and death of a loved one can be a deeply traumatizing event, which is only compounded by the slow pace of the criminal justice system. (Para 53-54) State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, 2022 LiveLaw (SC) 890

Death Penalty - Asessment as regards conduct of the accused, if made before the final submissions are advanced, will go a long way in rendering assistance- Court passed directions so that psychological evaluation of the concerned convict can be ascertained. Prakash Vishwanath Darandale v. State of Maharashtra, 2022 LiveLaw (SC) 876

Evidence Act, 1872; Section 27 - How the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 - Conditions necessary for the applicability of Section 27 - Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. (Para 78-87) Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887

Evidence Act, 1872; Section 30 - Confession of a co­accused could only be considered but could not be relied on as substantive evidence - Fine distinction between an extra judicial confession being a corroborative piece of evidence and a confession recorded under Section 15 of the TADA Act being treated as a substantive piece of evidence. (Para 66 -68) Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887

Evidence Act, 1872; Section 32 - Dying Declaration - Although a dying declaration ought to ideally be recorded by a Magistrate if possible, it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone. The issue of whether a dying declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case - The fact that the dying declaration is not in the form of questions and answers does not impact either its admissibility or its probative value - There is no rule mandating the corroboration of the dying declaration through medical or other evidence, when the dying declaration is not otherwise suspicious. (Para 41-44, 50-52) State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, 2022 LiveLaw (SC) 890

Evidence Act, 1872; Section 8 - The conduct of the accused alone, though may be relevant under Section 8 of the Evidence Act, cannot form the basis of conviction. (Para 89) Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887

Hate Speech - Supreme Court directs Uttar Pradesh, Uttarakhand and Delhi Governments to take suo motu action against hate speech crimes without waiting for formal complaints irrespective of the religion of the offender - Respondent Nos. 2 to 4 shall ensure that immediately as and when any speech or any action takes place which attracts offences such as Sections 153A, 153B and 295A and 505 of the IPC etc., suo moto action will be taken to register cases even if no complaint is forthcoming and proceed against the offenders in accordance with law. Shaheen Abdullah v. Union of India, 2022 LiveLaw (SC) 872

Industrial Areas Development Act, 1966 (Karnataka); Section 28(1), 41 - Power to acquire land beyond development by KIADB - Regulations framed by the Board under Section 41 also contemplates acquiring land for the purpose of allotment to a single company to set up an industry. (Para 37-39) M.S.P.L. Ltd. v. State of Karnataka, 2022 LiveLaw (SC) 886

Industrial Areas Development Act, 1966 (Karnataka); Sections 1, 3, 28 - Appeal against judgment of Karnataka High Court quashing the notifications for acquisition of land - Allowed - Division Bench committed an error in quashing the acquisition proceedings. M.S.P.L. Ltd. v. State of Karnataka, 2022 LiveLaw (SC) 886

Interpretation of Statutes - If the plain meaning of the provision does not admit of any ambiguity no other external aid will be necessary to interpret the provision except to give it the plain meaning. (Para 9) Delhi Airtech Services Pvt. Ltd v. State of U.P., 2022 LiveLaw (SC) 888

Interpretation of Statutes - The Courts should refrain itself from expressing value judgments and policy views in order to interpret statutes. Statutes are to be read in their plain language and not otherwise. (Para 45) M.S.P.L. Ltd. v. State of Karnataka, 2022 LiveLaw (SC) 886

Land Acquisition Act, 1894; Section 11A, 17(3A) - The provision contained in Section 11A shall be applicable to cases in which the acquiring authority has not complied with the requirement of Section 17 (3A) by tendering and paying eighty per centum of the estimated compensation before taking possession since possession in such cases cannot be considered to be taken in accordance with law and the vesting is not absolute - If the requirement is complied and possession is taken after tendering and paying eighty per centum, though there is need to pass an award and pay the balance compensation within a reasonable time, the rigour of Section 11A will not apply so as to render the entire proceedings for acquisition to lapse in the context of absolute vesting. The right of land loser in such case is to enforce passing of the award and recover the compensation - The decision in this case if it arises for consideration in any other case under Act, 1894 or any other enactment relating to land acquisition containing pari materia provisions shall be applied only prospectively and cases which have attained finality shall not be reopened. (Para 25-26) Delhi Airtech Services Pvt. Ltd v. State of U.P., 2022 LiveLaw (SC) 888

Land Acquisition Act, 1894; Section 17 - (1) payment of 80% (2) taking over possession thereafter and (3) vesting of land in the government take place in a sequence. Absent anyone of these in the sequence, the emergency provision fails - It cannot be understood as providing any discretion to the acquiring authority. (Para 12) Delhi Airtech Services Pvt. Ltd v. State of U.P., 2022 LiveLaw (SC) 888

Land Acquisition Act, 1894; Sections 11A and 6 - If the award is not made within the period of two years from the date of publication of the declaration under Section 6, the entire proceedings will stand lapsed. The only option for the acquiring authority if the land is still required for the public purpose is to notify afresh from the stage of issuing notification under Section 4. The computation of two years would however exclude the period if the process was stayed by an order of the Court. (Para 11) Delhi Airtech Services Pvt. Ltd v. State of U.P., 2022 LiveLaw (SC) 888

Motor Accident Compensation Claims - Multiplier of victims upto the age group of 15 years should be taken as '15' - When there is clear prohibition under Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 for engagement of children and the definition of "child" therein takes in children who have not completed their fourteenth year of age within its fold, there is certainly justification for selecting a lower multiplier of '15' in the case of victims belonging to the age group upto 15 years. (Para 10.1.4) Divya v. National Insurance Co. Ltd., 2022 LiveLaw (SC) 892

Municipal Corporation Act, 1957 (Delhi); Sections 42(f), 390 391 - Until and unless the conditions as mentioned in Section 391 are satisfied and it is specifically found that any burning or burial ground has become offensive, or dangerous to the health of the persons residing at neighbourhood, the burning and burial ground can be ordered to be closed with the previous sanction of the Standing Committee - Subsequent settlement of residents in city/town by itself not a ground to shift cremetorium - It is the duty cast upon the Municipal Corporation to make provision for regulation of places for the disposal of dead and the provision of maintenance of said places is an obligatory function of Municipal Corporation. (Para 5-6) South Delhi Municipal Corporation v. Federation of Residents Welfare Association Vasant Kunj, 2022 LiveLaw (SC) 883

Narcotic Drugs and Psychotropic Substances Act, 1985; Sections 37, 67 - Appeal against Bail granted to NDPS accused - Allowed - Validity and scope of statements under Section 67- Referred to Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1 - The rigour of law lay down in Tofan Singh was held to be applicable even at the stage of grant of bail - Referred to State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta & Anr. 2022 LiveLaw (SC) 69 - However, going by the circumstances on record, at this stage, the matter stands on a different footing - In the face of the mandate of Section 37 of the Act, the High Court could not and ought not to have released the accused on bail. Union of India (NCB) v. Khalil Uddin, 2022 LiveLaw (SC) 878

Negotiable Instruments Act, 1881; Section 138 - Supreme Court imposes Rs 5 lakhs cost on convict who agreed to settle the dispute only after 10 years of litigation - Court cites wastage of precious judicial time and tyranny of justice caused to complainant. Santhosh J. v. V. Narasimha Murthy, 2022 LiveLaw (SC) 874

Negotiable Instruments Act, 1881; Sections 118, 138, 139 - Once a cheque is issued and upon getting dishonoured a statutory notice is issued, it is for the accused to dislodge the legal presumption available under Sections 118 and 139 resply of the N.I. Act. Yogesh Jain v. Sumesh Chadha, 2022 LiveLaw (SC) 879

Penal Code, 1860; Section 375 - Whether a woman is "habituated to sexual intercourse" or "habitual to sexual intercourse" is irrelevant for the purposes of determining whether the ingredients of Section 375 of the IPC are present in a particular case. (Para 62) State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, 2022 LiveLaw (SC) 890

Prevention of Food Adulteration Act, 1954; Section 16(1)(a)(i) – Section 2(ia)(m) – Definition of Adulteration – Proviso – Public Analyst report must examine whether primary foods did not meet prescribed standards or had constituents in quantities outside the permissible threshold as a result of inescapable natural causes – Whether proviso is attracted, has to be seen – Held, – There was no whisper in the complaint or in the evidence as to whether the case would fall under the proviso – Questions such as whether increase in moisture content due to natural causes, unsatisfactory milk fat content due to quality of milk, not examined by Public Analyst – Therefore, appeal allowed and conviction of sweetmeat shop under Section 16(1)(a)(i) read with Section 2(ia)(m) for allegedly selling "adulterated" paneer set aside. Bhattacharjee Mahasya v. State of West Bengal, 2022 LiveLaw (SC) 873

Secularism & Fraternity - The Constitution of India envisages Bharat as a secular nation and fraternity assuring the dignity of the individual and unity and the integrity of the country is the guiding principle enshrined in the Preamble. There cannot be fraternity unless members of community drawn from different religions or castes of the country are able to live in harmony. Shaheen Abdullah v. Union of India, 2022 LiveLaw (SC) 872

Service Law - Railway Employees - The employees working under the same employer – Railway Board working in different Zones/Divisions are required to be treated similarly and equally and are entitled to similar benefits and are entitled to the same treatment - Commission Vendors/bearers working in the Northern Railway are entitled to have 50% of their services rendered prior to their regularization to be counted for pensionary benefits. Union of India v. Munshi Ram, 2022 LiveLaw (SC) 891

Two Finger Test - The "two-finger test" or pre vaginum test must not be conducted - It has no scientific basis and neither proves nor disproves allegations of rape. It instead re-victimizes and re-traumatizes women who may have been sexually assaulted, and is an affront to their dignity - It is patriarchal and sexist to suggest that a woman cannot be believed when she states that she was raped, merely for the reason that she is sexually active - Referred to Lillu v. State of Haryana (2013) 14 SCC 643 - Directions issued to the Union Government as well as the State Governments - Ensure that the guidelines formulated by the Ministry of Health and Family Welfare are circulated to all government and private hospitals - Conduct workshops for health providers to communicate the appropriate procedure to be adopted while examining survivors of sexual assault and rape - Review the curriculum in medical schools with a view to ensuring that the "two-finger test" or per vaginum examination is not prescribed as one of the procedures to be adopted while examining survivors of sexual assault and rape. (Para 61-66) State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, 2022 LiveLaw (SC) 890

UGC Regulations - Any appointment as a Vice Chancellor made on the recommendation of the Search Committee, which is constituted contrary to the provisions of the UGC Regulations shall be void ab initio. (Para 8.4) Professor (Dr.) Sreejith P.S. v. Dr. Rajasree M.S., 2022 LiveLaw (SC) 871

UGC Regulations - Appointment of the Vice Chancellor by the State government has to be as per the UGC Regulations and any appointment of Vice Chancellor in violation of the UGC Regulations shall be void ab initio. (Para 8.3) Professor (Dr.) Sreejith P.S. v. Dr. Rajasree M.S., 2022 LiveLaw (SC) 871

UGC Regulations - Appointment of Vice Chancellor must be as per the UGC Regulations, even if they have not been specifically adopted by the State- In case of any conflict between the State legislation and the Central legislation, the Central legislation, i.e., the applicable UGC Regulations shall prevail by applying the principle of repugnancy under Article 254 of the Constitution as the subject "education" is contained in the Concurrent List of Schedule VII of the Constitution. (Para 8, 8.4) Professor (Dr.) Sreejith P.S. v. Dr. Rajasree M.S., 2022 LiveLaw (SC) 871

UGC Regulations, 2013 – Clause 7.3.0 - Search Committee for selection of Vice-Chancellor must prepare a panel of 3 to 5 names-when only one name was recommended and the panel of names was not recommended, the Chancellor had no option to consider the names of the other candidates. Therefore, the appointment of the respondent No. 1 held contrary to Regulations. (Para 8.10) Professor (Dr.) Sreejith P.S. v. Dr. Rajasree M.S., 2022 LiveLaw (SC) 871

Village Common Lands (Regulation) Act, 1961 (Punjab); Section 13(b) - Land Revenue Act, 1887 (Punjab); Section 45 - Section 45 of the Punjab Land Revenue Act shall be applicable only in a case where the plaintiff wants to protect his possession on the basis of his name in the mutation record and/or revenue record. However, any dispute with respect to mutation entry can only be before the revenue authorities only. Ishwar v. Gram Panchayat Parli Khurd, 2022 LiveLaw (SC) 875

NOMINAL INDEX

1. Bhattacharjee Mahasya v. State of West Bengal, 2022 LiveLaw (SC) 873
2. Delhi Airtech Services Pvt. Ltd v. State of U.P., 2022 LiveLaw (SC) 888
3. Divya v. National Insurance Co. Ltd., 2022 LiveLaw (SC) 892
4. Ishwar v. Gram Panchayat Parli Khurd, 2022 LiveLaw (SC) 875
5. JSK Industries Pvt. Ltd. v. Oriental Insurance Company Ltd., 2022 LiveLaw (SC) 884
6. Kerala Land Reforms & Development Co-operative Society Ltd. v. District Registrar (General), 2022 LiveLaw (SC) 882
7. M.S.P.L. Ltd. v. State of Karnataka, 2022 LiveLaw (SC) 886
8. Prakash Vishwanath Darandale v. State of Maharashtra, 2022 LiveLaw (SC) 876
9. Professor (Dr.) Sreejith P.S. v. Dr. Rajasree M.S., 2022 LiveLaw (SC) 871
10. Ravikant Srivastava @ Ravi Kant Shrivastava v. State of Jharkhand, 2022 LiveLaw (SC) 877
11. Re: Policy Strategy for Grant of Bail, 2022 LiveLaw (SC) 889
12. S. Nalini Jayanthi v. M. Ramasubba Reddy, 2022 LiveLaw (SC) 880
13. Santhosh J. v. V. Narasimha Murthy, 2022 LiveLaw (SC) 874
14. Shaheen Abdullah v. Union of India, 2022 LiveLaw (SC) 872
15. South Delhi Municipal Corporation v. Federation of Residents Welfare Association Vasant Kunj, 2022 LiveLaw (SC) 883
16. State of Jharkhand v. Shailendra Kumar Rai @ Pandav Rai, 2022 LiveLaw (SC) 890
17. Subramanya v. State of Karnataka, 2022 LiveLaw (SC) 887
18. Tarun Aggarwal v. Union of India, 2022 LiveLaw (SC) 885
19. Thermax Ltd v. Commissioner of Central Excise, Pune-1, 2022 LiveLaw (SC) 881
20. Union of India (NCB) v. Khalil Uddin, 2022 LiveLaw (SC) 878
21. Union of India v. Munshi Ram, 2022 LiveLaw (SC) 891
22. Yogesh Jain v. Sumesh Chadha, 2022 LiveLaw (SC) 879