Supreme Court Weekly Digest With Nominal And Subject/Statute Wise Index [November 21 – 30, 2022]

Central Excise Act, 1944; Section 11B - Central Excise Rules, 2002 ; Rule 18 - While making claim for rebate of duty under Rule 18 of the Central Excise Rules, 2002, the period of limitation prescribed under Section 11B of the Central Excise Act, 1944 shall have to be applied and applicable. (Para 15) Sansera Engineering Ltd. v. Deputy Commissioner, Large Tax Payer Unit, Bengaluru, 2022 LiveLaw (SC) 997

Code of Criminal Procedure, 1973; Section 41A - The observations made in the impugned judgment [State of Telangana vs Ramachandra Barathi @ Sathish Sharma V.K.] which are contrary to the observations made in the case of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273 would not be treated as a binding precedent in the State of Telangana. Ramachandra Barathi @ Sathish Sharma V.K. v. State of Telangana, 2022 LiveLaw (SC) 986

Code of Criminal Procedure, 1973; Section 482 - Complaint on the basis of which FIR came to be registered does not disclose any act of the accused or their participation in the commission of crime - Criminal proceedings quashed. Ramesh Chandra Gupta v. State of U.P., 2022 LiveLaw (SC) 993

Constitution of India, 1950 ; Article 32 - Clubbing of FIRs - Plea of accused seeking consolidating of all existing and future cases or FIRs/chargesheets to a particular Court or police station - Such direction, if given, would override the provisions of the Code of Criminal Procedure on jurisdictional provisions without notifying the existing as also potential complainants in any manner whatsoever - The alleged cheating and connected offences have occurred at different parts of the country and each victim under the existing provisions of law has a right to prosecute his complaints against the accused through the law enforcement agency under normal circumstances having power to conduct investigation in the particular territory where complaint is lodged - A person who has lost money in, for instance, the State of Telangana cannot be compelled to lodge an F.I.R. only in the Surajpur police station in Uttar Pradesh. We have to consider his inconvenience as well. It is not our opinion that consolidation of F.I.Rs. or cases cannot be directed at all, but such exercise can be undertaken in a given case depending upon the facts and circumstances of such case. Present case does not warrant invoking such powers. Anubhav Mittal v. State of Uttar Pradesh, 2022 LiveLaw (SC) 980

Constitution of India, 1950; Article 141 - High Court is not a Court to subordinate to the Supreme Court. However, when the High Court deals with judgments of this Court, which are binding on everyone under Article 141 of the Constitution of India, it is expected that the judgments have to be dealt with due respect. Ramachandra Barathi @ Sathish Sharma V.K. v. State of Telangana, 2022 LiveLaw (SC) 986

Constitution of India, 1950; Article 21 - Justice is not to be done but the justice is seen to have been done also - Free and fair trial is sine qua non of Article 21 of the Constitution. If the criminal trial is not free and fair and if it is biased, judicial fairness and the criminal justice system would be at stake, shaking the confidence of the public in the system. (Para 14) Suneetha Narreddy v. Central Bureau of Investigation, 2022 LiveLaw (SC) 996

Constitution of India, 1950; Article 226 - Disciplinary Proceedings - Courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or the statutory regulations have not been adhered to or there are malafides attributable to the Disciplinary Authority, then the courts can certainly interfere - Being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in Union of India vs. P. Gunasekaran ((2015) 2 SCC 610). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor. (Para 15-22) Union of India v. Subrata Nath, 2022 LiveLaw (SC) 998

Constitution of India, 1950; Article 32 - Writ petition seeking transfer of criminal trial - Murder of former AP Minister YS Vivekananda Reddy from Andhra Pradesh - For transfer of a criminal case, there must be a reasonable apprehension on the part of the party to a case that justice may not be done - However the Court has to see whether the apprehension alleged is reasonable or not. The apprehension must not only be imaginary, but must appear to the court to be a reasonable apprehension - Petitioners being daughter and wife of the deceased have a fundamental right to get justice as victim and they have a legitimate expectation that criminal trial is being conducted in a fair and impartial manner and uninfluenced by any extraneous considerations - This is a fit case to transfer the trial and further investigation on larger conspiracy and destruction of evidence to the State other than the State of Andhra Pradesh - Trial Transferred to CBI Special Court at Hyderabad. Suneetha Narreddy v. Central Bureau of Investigation, 2022 LiveLaw (SC) 996

Contract Act, 1872; Section 10 - It is not essential to form a contract, that it should be in writing - If a law stipulates that a contract be in writing in which case a contract must be reduced to writing. (Para 56) Karnataka Power Transmission Corporation Ltd. v. JSW Energy Ltd., 2022 LiveLaw (SC) 981

Contract Act, 1872; Sections 2, 10 - Concluded Contract - In order that there must be a contract concluded, undoubtedly, there must be a proposal made, which must be accepted. There must be consideration for the promise. The proposal must be accepted, which must be communicated - The acceptance must be unqualified - The parties can be said to have entered into a contract or a contract would be said to be concluded only when they are ad idem on all the essential terms of the contract - If the proposals containing the essential terms have been accepted, and the acceptance is communicated and, if the other conditions in Section 2 are complied with, viz. , that is there is consideration and the contract is enforceable in law, within the meaning of Section 10, it would lead to the creation of a concluded contract. (Para 78) Karnataka Power Transmission Corporation Ltd. v. JSW Energy Ltd., 2022 LiveLaw (SC) 981

Criminal Justice System - The criminal justice system of ours can itself be a punishment - The present appeals were preferred assailing that order and interim stay was granted at the threshold. The trial of course naturally did not proceed in view of the stay by this Court. The matter has rested at that for the last thirteen years. V.P. Singh v. State of Punjab, 2022 LiveLaw (SC) 994

Electricity Act, 2003 - The Appropriate State Commissions possess the power to determine and regulate tariff. The Electricity Act 2003 seeks to distance the State Governments from the determination and regulation of tariff, placing such power completely within the ambit of the Appropriate Commissions - States have sufficient flexibility to regulate the intra-state transmission systems. (Para 128) TATA Power Company Limited Transmission v. Maharashtra Electricity Regulatory Commission, 2022 LiveLaw (SC) 987

Electricity Act, 2003; Section 125 - Findings of fact by the Regulatory Commission and the Tribunal cannot be reopened on appeal under Section 125 - Appeal shall lie only if the court is satisfied that the case involves a substantial question of law. (Para 106.2) TATA Power Company Limited Transmission v. Maharashtra Electricity Regulatory Commission, 2022 LiveLaw (SC) 987

Electricity Act, 2003; Section 181 - State Regulatory Commissions to frame Regulations under Section 181 of the Act on the terms and conditions for determination of tariff within three months from the date of this judgment. While framing these guidelines on determination of tariff, the Appropriate Commission shall be guided by the principles prescribed in Section 61, which also includes the NEP and NTP. Where the Appropriate Commission(s) has already framed regulations, they shall be amended to include provisions on the criteria for choosing the modalities to determine the tariff, in case they have not been already included. The Commissions while being guided by the principles contained in Section 61 shall effectuate a balance that would create a sustainable model of electricity regulation in the States. The Regulatory Commission shall curate to the specific needs of the State while framing these regulations. (Para 131) TATA Power Company Limited Transmission v. Maharashtra Electricity Regulatory Commission, 2022 LiveLaw (SC) 987

Electricity Act, 2003; Section 86(1)(a) - MERC while exercising its general regulatory powers under Section 86(1)(a) shall be guided by the NTP 2016, which shall be a material consideration. Accordingly, while NTP 2016 requires intra-state transmission projects above the threshold limit to be allotted through TBCB route, this constitutes a material consideration to be taken into account. (Para 128) TATA Power Company Limited Transmission v. Maharashtra Electricity Regulatory Commission, 2022 LiveLaw (SC) 987

Electricity Act, 2003; Sections 61 - 63 - Electricity Act do not prescribe one dominant method to determine tariff. Section 63 operates after the bidding process has been conducted. Where the tariff has already been determined through bidding, the Appropriate Commission has to adopt such tariff that has been determined. The Appropriate Commission cannot negate such tariff determined through bidding by using its powers under Section 62. The tariff determined through the bidding process may not be adopted by the Appropriate Commission only if the bidding process was not transparent (undertaking a substantive review) or the procedure prescribed by the Central Government guidelines under Section 63 was not followed (undertaking a procedural review)- Sections 62 and 63 stipulate the modalities of tariff determination. The non-obstante clause in Section 63 cannot be interpreted to mean that Section 63 would take precedence over Section 62 at the stage of choosing the modality to determine tariff. The criteria or guidelines for the determination of the modality of tariff determination ought to be notified by the Appropriate State Commission either through regulations under Section 181 of the Act or guidelines under Section 61 of the Act. (Para 128) TATA Power Company Limited Transmission v. Maharashtra Electricity Regulatory Commission, 2022 LiveLaw (SC) 987

Electricity Reforms Act, 1999 (Karnataka); Section 27(2) - The proviso when it uses the words 'contracts concluded', does not use the words 'contracts concluded as regards tariffs' . A contract of the nature cannot be said to consist only of a rate and the term or even the quantum included. In a contract of this nature, there are obviously variou other aspects about which the parties must be ad idem. The rate, the term and quantum are integrally interconnected with other terms. There cannot be concluded contract without parties being ad idem about those terms. (Para 79) Karnataka Power Transmission Corporation Ltd. v. JSW Energy Ltd., 2022 LiveLaw (SC) 981

Electricity Reforms Act, 1999 (Karnataka); Section 41 - A Right of Appeal is a creature of a Statute. The right can be qualified or conditioned. The ambit of the appellate power is to be discerned from the terms of the Statute. A 'question of law' is not the same as a 'substantial question of law'. However, when the Statute insists on a 'question of law' to maintain an appeal, the Appellate Body stands constrained to that extent. (Para 88) Karnataka Power Transmission Corporation Ltd. v. JSW Energy Ltd., 2022 LiveLaw (SC) 981

Electricity Regulatory Commission (Karnataka) - The Commission is an Expert Body. Interference with its findings cannot be sustained, to begin with, if it is bereft of reasons. Findings of such a body must receive due deference. Perversity in the sense of findings, which are wholly without basis or material or which no person with the professed skills would arrive at, may merit interference. A finding, which ill squares with a clear statutory injunction, would leave the door ajar for overturning the finding. (Para 89) Karnataka Power Transmission Corporation Ltd. v. JSW Energy Ltd., 2022 LiveLaw (SC) 981

Employees State Insurance Act, 1948; Section 39(5)(a) - Neither the Authority nor the Court have any authority to either waive the interest and/or reduce the interest and/or the period during which the interest is payable - The interest leviable/payable is a statutory liability to pay the interest -The liability to pay the interest is from the date on which such contribution has become due and till the date of its actual payment. Regional Director / Recovery Officer v. Nitinbhai Vallabhai Panchasara, 2022 LiveLaw (SC) 983

Fake Pharmacists - PIL before Patna HC restored - The manner in which the High Court has disposed of the PIL ventilating the very serious grievances touching the health and life of the citizen is disapproved - High Court to call for detailed report/counter from the State of Bihar and Bihar State Pharmacy Council on (i) how many Governments' hospitals/hospitals/medical stores/private hospitals are being run either by fake pharmacist or without registered pharmacist; (ii) whether any action is taken by the State Government on the fact-finding committee report submitted by the Bihar State Pharmacy Council which was reported to be forwarded to the State Government; (iii) whether there are any fake pharmacists as alleged in the writ petition; (iv) any action is taken by the State Government or by the Bihar State Pharmacy Council against such fake pharmacist; (v) whether the Pharmacy Practice Regulations, 2015 are being followed in the entire State of Bihar or not. Mukesh Kumar v. State of Bihar, 2022 LiveLaw (SC) 995

Income Tax Act, 1961; Section 260A - Appeals against every decision of ITAT shall lie only before the High Court within whose jurisdiction the assessing officer who passed the assessment order is situated. Commissioner of Income Tax - I v. Balak Capital Pvt. Ltd; 2022 LiveLaw (SC) 982

Income Tax Act, 1961; Section 45(4) - Section 45(4) applicable to not only the cases of dissolution but also cases of subsisting partners of a partnership, transferring the assets in favour of a retiring partner. Commissioner of Income Tax v. Mansukh Dyeing and Printing Mills, 2022 LiveLaw (SC) 991

Land Acquisition Act, 1894 - Land acquired in 1981 but compensation not yet paid - Authorities directed payment of compensation within two months - The value of the said land cannot be computed at the rate less than Rs. 250/­ per sq. yard which is supported by the evidence brought on record by the land owners. Revenue Divisional Officer v. Ismail Bhai, 2022 LiveLaw (SC) 984

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 2(xvii) - Once it is found that the seized material contain 'morphine' and 'meconic acid' it is sufficient to establish that the seized material comes within the definition of Section 2(xvii) of the NDPS Act (opium poppy). State of Himachal Pradesh v. Angejo Devi, 2022 LiveLaw (SC) 990

Negotiable Instruments Act, 1881; Section 139 - Presumption under Section 139 includes a presumption that there exists a legally enforceable debt or liability. However, the presumption under Section 139 of the N.I. Act is rebuttable and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. Jain P. Jose v. Santhosh, 2022 LiveLaw (SC) 979

Penal Code, 1860; Section 300, 302, 304 Part II - Appeal against concurrent murder conviction of a husband accused of killing wife - Partly allowed - Modified to Section 304 Part II of IPC - there was no pre-mediation to cause the death and the incident had occurred at the spur of the moment and the appellant having realised his mistake had thereafter taken immediate steps to shift his wife to the hospital but unfortunately she breathed her last. Jai Karan Yadav v. State (NCT of Delhi), 2022 LiveLaw (SC) 992

Penal Code, 1860; Section 306 - Abetment of Suicide - Student committed suicide following disciplinary Action by educational institution - FIR registered against the teacher, the Head of the Department and the Principal on the complaint filed by student's father that the suicide was instigated by them - Discharging the accused, the Supreme Court observed: We find not an iota of material on record even assuming the complete charge sheet to be correct which could lead to a conviction in a case of abetment as there was absence of the necessary ingredients to make the offence. While we appreciate the anguish of a father who has lost a young son, that cannot result in blaming the world (in the present case, the institution and its teachers) for what is a basic disciplinary action necessary for running the institute. A contra position would create a lawless and unmanageable situation in an educational institution. V.P. Singh v. State of Punjab, 2022 LiveLaw (SC) 994

Pharmacy Act, 1948 - Pharmacy Practice Regulations, 2015 - It is the duty of Pharmacy Council and State Government to see that the hospitals/medical stores, etc., are not run by the fake pharmacist and are run by the registered pharmacist only - Running the hospitals/dispensaries in absence of any registered pharmacist and/or running such hospitals by fake pharmacist and even running the medical stores by fake pharmacist and without even any pharmacist will ultimately affect the health of the citizen. Mukesh Kumar v. State of Bihar, 2022 LiveLaw (SC) 995

Practice and Procedure - Adverse remarks made by Rajasthan HC against a Sessions Judge set aside - The observations are not called for in the given scenario and in fact it is such an approach which discourages the trial Courts in granting bail resulting in huge volume of litigation before the High Court and this Court. Sarita Swami v. State of Rajasthan, 2022 LiveLaw (SC) 985

Statement of Prosecutrix – Indian Penal Code, 1860 (Act 45 of 1860) – Sections 376 and 450 – Failure of Police to Send Seized Clothes to Forensic Laboratory – Once the court believes the version of a survivor of sexual assault, that is sufficient to establish an offence punishable under Section 376, IPC – Failure of the police to send seized articles to the forensic science laboratory would not affect the outcome in such a case – Held, there was no merit in the appeal by the appellant-accused – Appeal dismissed. Somai v. State of Madhya Pradesh, 2022 LiveLaw (SC) 989

Subordinate Legislation - Subordinate legislation cannot override the parent statute. Subordinate legislation which is in aid of the parent statute has to be read in harmony with the parent statute. Subordinate legislation cannot be interpreted in such a manner that parent statute may become otiose or nugatory. (Para 10) Sansera Engineering Ltd. v. Deputy Commissioner, Large Tax Payer Unit, Bengaluru, 2022 LiveLaw (SC) 997

NOMINAL INDEX

1. Anubhav Mittal v. State of Uttar Pradesh, 2022 LiveLaw (SC) 980
2. Commissioner of Income Tax - I v. Balak Capital Pvt. Ltd; 2022 LiveLaw (SC) 982
3. Commissioner of Income Tax v. Mansukh Dyeing and Printing Mills, 2022 LiveLaw (SC) 991
4. Jai Karan Yadav v. State (NCT of Delhi), 2022 LiveLaw (SC) 992
5. Jain P. Jose v. Santhosh, 2022 LiveLaw (SC) 979
6. Karnataka Power Transmission Corporation Ltd. v. JSW Energy Ltd., 2022 LiveLaw (SC) 981
7. Meenakshi Solar Power Pvt. Ltd. v. Abhyudaya Green Economic Zones Pvt. Ltd., 2022 LiveLaw (SC) 988
8. Mukesh Kumar v. State of Bihar, 2022 LiveLaw (SC) 995
9. Ramachandra Barathi @ Sathish Sharma V.K. v. State of Telangana, 2022 LiveLaw (SC) 986
10. Ramesh Chandra Gupta v. State of U.P., 2022 LiveLaw (SC) 993
11. Regional Director / Recovery Officer v. Nitinbhai Vallabhai Panchasara, 2022 LiveLaw (SC) 983
12. Revenue Divisional Officer v. Ismail Bhai, 2022 LiveLaw (SC) 984
13. Sansera Engineering Ltd. v. Deputy Commissioner, Large Tax Payer Unit, Bengaluru, 2022 LiveLaw (SC) 997
14. Sarita Swami v. State of Rajasthan, 2022 LiveLaw (SC) 985
15. Somai v. State of Madhya Pradesh, 2022 LiveLaw (SC) 989
16. State of Himachal Pradesh v. Angejo Devi, 2022 LiveLaw (SC) 990
17. Suneetha Narreddy v. Central Bureau of Investigation, 2022 LiveLaw (SC) 996
18. TATA Power Company Limited Transmission v. Maharashtra Electricity Regulatory Commission, 2022 LiveLaw (SC) 987
19. Union of India v. Subrata Nath, 2022 LiveLaw (SC) 998
20. V.P. Singh v. State of Punjab, 2022 LiveLaw (SC) 994