Supreme Court Weekly Digest With Nominal And Subject/Statute Wise Index (Citation 756 - 776) Part 3 [September 12, 2022 – September 18, 2022]

Arbitration and Conciliation Act, 1996 - Relief related to tax concessions are not arbitrable. Shree Enterprise Coal Sales Pvt. Ltd. v. Union of India, 2022 LiveLaw (SC) 774

Arbitration and Conciliation Act, 1996; Section 9 - Proof of actual attempts to deal with, remove or dispose of the property with a view to defeat or delay the realisation of an impending Arbitral Award is not imperative for grant of relief under Section 9 - A strong possibility of diminution of assets would suffice - The power under Section 9 should not ordinarily be exercised ignoring the basic principles of procedural law as laid down in the CPC, but the technicalities of CPC cannot prevent the Court from securing the ends of justice - If a strong prima facie case is made out and the balance of convenience is in favour of interim relief being granted, the Court exercising power under Section 9 of the Arbitration Act should not withhold relief on the mere technicality of absence of averments, incorporating the grounds for attachment before judgment under Order 38 Rule 5 of the CPC. (Para 39-50) Essar House Pvt. Ltd. v. Arcellor Mittal Nippon Steel India Ltd., 2022 LiveLaw (SC) 765

Code of Civil Procedure, 1908; Order I Rule 10 - Plaintiffs are the domius litis - Unless the court suo motu directs to join any other person not party to the suit for effective decree and/or for proper adjudication as per Order 1 Rule 10 CPC, nobody can be permitted to be impleaded as defendants against the wish of the plaintiffs - In case the counter-claim is allowed, it will not be open for the plaintiffs to contend that no decree in the counter-claim be passed in absence of the subsequent purchasers - Non-impleading the subsequent purchasers as defendants on the objection raised by the plaintiffs shall be at the risk of the plaintiffs. (Para 5 - 7) Sudhamayee Pattnaik v. Bibhu Prasad Sahoo, 2022 LiveLaw (SC) 773

Code of Criminal Procedure, 1973; Section 195, 340 - Whether Section 340 CrPC mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 CrPC by a Court - There is no question of opportunity of hearing in a scenario of this nature - Scope and ambit of such a preliminary inquiry. State of Punjab v. Jasbir Singh, 2022 LiveLaw (SC) 776

Code of Criminal Procedure, 1973; Section 227 - Simple and necessary inquiry to be conducted for a proper adjudication of an application for discharge for coming to a conclusion that a prima facie case is made out for the accused to stand trial - The threshold of scrutiny required to adjudicate an application under Section 227 Cr.P.C. is to consider the broad probabilities of the case and the total effect of the material on record, including examination of any infirmities appearing in the case. (Para 12-18) Kanchan Kumar v. State of Bihar, 2022 LiveLaw (SC) 763

Code of Criminal Procedure, 1973; Section 482 - Negotiable Instruments Act, 1881; Section 138,141 - High Court should not interfere under Section 482 of the Code at the instance of an accused unless it comes across some unimpeachable and incontrovertible evidence to indicate that the Director/partner of a firm could not have been concerned with the issuance of cheques - If any Director wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he/she is really not concerned with the issuance of the cheque, he/she must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his/her contention. He/she must make out a case that making him/her stand the trial would be an abuse of process of Court. (Para 47) S.P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan, 2022 LiveLaw (SC) 772

Code of Criminal Procedure, 1973; Sections 438, 439 - Bail applications must be decided as expeditiously as possible and not to be posted in due course of time. Tulsi Ram Sahu v. State of Chhattisgarh, 2022 LiveLaw (SC) 764

Constitution of India, 1950; Article 136 - The discretionary jurisdiction under Article 136 should not ordinarily be exercised to interfere with an otherwise just and reasonable order by recourse to hyper technicality upon a narrow, rigid and pedantic interpretation of the guidelines. (Para 55) State of Telangana v. B. Subba Rayadu, 2022 LiveLaw (SC) 767

Constitution of India, 1950; Article 19 - Fundamental rights under Article 19 cannot be restricted through executive instructions -citizen cannot be deprived of the said right except in accordance with law. It has further been held that the requirement of law for the purpose of clause (6) of Article 19 of the Constitution can by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution or otherwise. [Para 43] Pharmacy Council of India v. Rajeev College of Pharmacy, 2022 LiveLaw (SC) 768

Constitution of India, 1950; Article 19 - Supreme dismissed a batch of appeals filed by the Pharmacy Council of India against the judgments of certain High Courts which set aside the moratorium imposed on starting new Pharmacy colleges for 5 years. Pharmacy Council of India v. Rajeev College of Pharmacy, 2022 LiveLaw (SC) 768

Constitution of India, 1950; Article 19(1)(g) - The right to establish an educational institution is a fundamental right under Article 19(1)(g) of the Constitution of India and reasonable restrictions on such a right can be imposed only by a law and not by an execution instruction. [Para 54, 55] Pharmacy Council of India v. Rajeev College of Pharmacy, 2022 LiveLaw (SC) 768

Constitution of India, 1950; Article 21 - Exhumation - Once buried, a body should not be disturbed - the Union Government should consider enacting an appropriate legislation on exhumation. The right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living man but also to his body after his death - Family members also have a right to perform the last rites in accordance with the religious traditions. Mohammed Latif Magrey v. Union Territory of Jammu and Kashmir, 2022 LiveLaw (SC) 756

Constitution of India, 1950; Article 324(1), 243-K and 243-ZA(1) - The Election Commission has wide powers under Article 324(1) to issue directions necessary for conducting free and fair elections, subject to the contours of law. The power of the Election Commission includes the power to issue directions where the law is silent. The State Election Commission has the same powers under Article 243-K and 243-ZA(1) as the Election Commission of India has under Article 324(1). (Para 68) S. Rukmini Madegowda v. State Election Commission, 2022 LiveLaw (SC) 766

Constitution of India, 1950; Articles 2,3 13, 19(1)(e) - Andhra Pradesh State Reorganisation Act, 2014 - There is only one domicile i.e. domicile of the country and there is no separate domicile for a State -The Reorganization Act or any guidelines framed thereunder cannot take away from citizens, the right to reside and settle in any part of the country - When a State is divided and the employees and officers of the State Government have to be allotted to the two states, such allocation has to be done on the basis of the Rules and Regulations and by guidelines - However they have to be construed harmoniously with the fundamental rights guaranteed under the Constitution of India. (Para 59-68) State of Telangana v. B. Subba Rayadu, 2022 LiveLaw (SC) 767

Courts Act, 1918 (Punjab); Section 41 - Second appeal is not a forum where the court is to re­examine or re­appreciate the question of fact settled by the trial court or the Appellate Court - Though in view of Section 41 of the Punjab Act, it is not necessary to frame a substantial question of law, the jurisdiction of the High Court under second appeal cannot be exercised for re­appreciation of evidence. (Para 16-17) Shivali Enterprises v. Godawari (D), 2022 LiveLaw (SC) 762

Education - Tamil Nadu Recognised Private Schools (Regulations) Act, 1973 - Government Order fixing 50% marks for eligibility to undergo Teachers' Training Certificate Course for appointment in the State of Tamil Nadu - Upheld. Director of Teacher's Training Research Education v. OM Jessymol, 2022 LiveLaw (SC) 759

Election - A false declaration with regard to the assets of a candidate, his/her spouse or dependents, constitutes corrupt practice irrespective of the impact of such a false declaration on the election of the candidate. It may be presumed that a false declaration impacts the election. (Para 38) S. Rukmini Madegowda v. State Election Commission, 2022 LiveLaw (SC) 766

Judgment and Order - An order is in the given factual scenario. The judgment lays down the principles of law. The scenario is that any order or judgment passed by this Court becomes a reportable exercise to create more volumes of reported cases! This thus has a possibility at times of causing some confusion on the legal principles prevalent. State of Punjab v. Jasbir Singh, 2022 LiveLaw (SC) 776

Judicial Service - Appellant had applied to the post of Additional District and Sessions Judge (in Bihar) - In the meantime, he also applied for post of Civil Judge (Junior Division) in State of Uttar Pradesh - After being successful in the selection process (UP), he was appointed on 16th January 2017 as a Civil Judge (Junior Division) in UP - After this, the selection process for recruitment in the Bihar Superior Judicial Services proceeded further. After obtaining the requisite permission from the Allahabad HC, he participated in the selection process conducted by the Patna High Court for the post of Additional District & Sessions Judge. After successfully clearing the selection process, he obtained permission from the Allahabad HC for resigning from the Uttar Pradesh Judicial Services, so as to join his service as Additional District and Sessions Judge in the State of Bihar. Thus he joined the Bihar Superior Judicial Service with effect from 21st August 2018 - Later the Patna HC terminated his service citing the decision in Dheeraj Mor v. High Court of Delhi (2020) 7 SCC 401 - His writ petition challenging this termination dismissed by Patna HC - Allowing appeal, the Supreme Court observed: He was neither in services of the Bihar Subordinate Judicial Services Cadre on the date on which he applied - Nor was he in the services of the Bihar Subordinate Judicial Officer Cadre on the date on which he was selected- He had also sought permission from Allahabad HC in this regard - directed reinstation. Sunil Kumar Verma v. State of Bihar, 2022 LiveLaw (SC) 775

Juvenile Justice - Plea of juvenility could be raised in any court, at any stage even after the final disposal of the Special Leave Petition- Where the plea of juvenility is raised at a belated stage, often certain medical tests are resorted to forage determination in absence of the documents - While appreciating the evidence adduced on behalf of the accused in support of the plea that he is a juvenile, if two views are possible on the same evidence, the Court should lean in favour of holding the accused to be juvenile in borderline cases. The inquiry contemplated is not a roving inquiry. The Court can accept as evidence something more than an affidavit i.e. documents, certificates etc. as evidence in proof of age. A mere opinion by a person as to the accused looking one or two years older than the age claimed by him (as the opinion of the head master in the present case) or the fact that the accused told his age to be more than what he alleges in the case while being arrested by the police officer would not hold much water. It is the documentary evidence placed on record that plays a major role in determining the age of a juvenile in conflict of law. And, it is only in the cases where the documents or certificates placed on record by the accused in support of his claim of juvenility are found to be fabricated or manipulated, that the Court, the Juvenile Justice Board or the Committee need to go for medical test for age determination. Vinod Katara v. State of Uttar Pradesh, 2022 LiveLaw (SC) 757

Micro, Small and Medium Enterprises Development Act, 2006; Section 18, 19 - MSMED Act does not empower the Facilitation Council to review its own decisions - i) that to begin with, the Facilitation Council should conduct conciliation; (ii) that upon failure of conciliation, the dispute is to be arbitrated either by the Facilitation council itself or by an institution to which it is referred; and (iii) that the decision arrived at thereto, constitutes an award. (Para 14-16) Bajaj Auto Ltd. v. Ajanta Press and Mechanical Works, 2022 LiveLaw (SC) 769

Micro, Small and Medium Enterprises Development Act, 2006; Section 8(1) - MSMED Act is not applicable to transactions which took place even before the Act was enacted and that by taking recourse to Section 8(1) of the Act and filing a memorandum, a person cannot assume the legal status conferred under the Act to claim retrospectively - MSMED Act was not intended to provide a gateway for hopelessly time barred claims. (Para 12,17) Bajaj Auto Ltd. v. Ajanta Press and Mechanical Works, 2022 LiveLaw (SC) 769

Municipal Corporation Act, 1976 (Karnataka) - Karnataka Municipal Corporation (Election) Rules, 1979 - No legal or normative impediment for the State Election Commission to issue directions requiring disclosure of assets of the candidate, his/her spouse and dependent associates by way of affidavit - Purity of election at all levels, be it election to the Union Parliament or a State Legislature or a Municipal Corporation or a Panchayat is a matter of national importance in which a uniform policy is desirable in the interest of all the States. A hypertechnical view of the omission to incorporate any specific provision in the KMC Election Rules, similar to the 1961 Rules, expressly requiring disclosure of assets, to condone dishonesty and corrupt practice would be against the spirit of the Constitution and public interest. (Para 70-74) S. Rukmini Madegowda v. State Election Commission, 2022 LiveLaw (SC) 766

Municipal Corporation Act, 1976 (Karnataka); Section 39 - The non-disclosure of assets would therefore, also amount to 'undue influence' and consequently to 'corrupt practices' under the KMC Act. (Para 62) S. Rukmini Madegowda v. State Election Commission, 2022 LiveLaw (SC) 766

Negotiable Instruments Act, 1881; Section 138, 141 - The object of notice before the filing of the complaint is not just to give a chance to the drawer of the cheque to rectify his omission to make his stance clear so far as his liability under Section 138 of the NI Act is concerned - It is essential for the person to whom statutory notice is issued under Section 138 of the NI Act to give an appropriate reply. The person concerned is expected to clarify his or her stance. If the person concerned has some unimpeachable and incontrovertible material to establish that he or she has no role to play in the affairs of the company/firm, then such material should be highlighted in the reply to the notice as a foundation. (Para 44) S.P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan, 2022 LiveLaw (SC) 772

Negotiable Instruments Act, 1881; Section 138, 141 - Vicarious criminal liability can be inferred against the partners of a firm when it is specifically averred in the complaint about the status of the partners 'qua' the firm. This would make them liable to face the prosecution but it does not lead to automatic conviction - On the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Directors or the officers in charge of the affairs of the company/partners of a firm to show that they were not liable to be convicted. (Para 47) S.P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan, 2022 LiveLaw (SC) 772

Penal Code, 1860; Section 300, 302 - Conviction of a man accused of killing his own father following a fight under the influence of liquor upheld - Maybe it was under the influence of liquor, but the nature of blows was such that the endeavour was to end the life of the deceased, the father. It was certainly an act in a cruel and brutal manner taking advantage of the situation even if there was no pre-meditation - There is no cause made out for application of Exception 4 of Section 300. Chherturam @ Chainu v. State of Chhattisgarh, 2022 LiveLaw (SC) 761

Practice and Procedure - Growing tendency of indirectly seeking review of the orders by filing applications either seeking modification or clarification of the orders - A total abuse of process of law - The valuable time of Court is spent in deciding such applications which time would otherwise be utilized for attending litigations of the litigants who are waiting in the corridors of justice for decades together - 10 Lakhs costs imposed on each applicants. (Para 4-6) Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd., 2022 LiveLaw (SC) 771

Precedent - A judgment is a precedent for the issue of law that is raised and decided. The judgment has to be construed in the backdrop of the facts and circumstances in which the judgment has been rendered. Words, phrases and sentences in a judgment, cannot be read out of context. Nor is a judgment to be read and interpreted in the manner of a statute. It is only the law as interpreted by Court in an earlier judgment, which constitutes a binding precedent, and not everything that the Judges say. (Para 41) S. Rukmini Madegowda v. State Election Commission, 2022 LiveLaw (SC) 766

Representation of People Act, 1950 - Conduct of Elections Rules, 1961 - The right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute - The name of a candidate to be proposed while filling the nomination form. Therefore, an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act. Vishwanath Pratap Singh v. Election Commission of India, 2022 LiveLaw (SC) 758

Specific Relief Act, 1963; Section 12 - A Court cannot grant the relief of specific performance against a person compelling him to enter into an agreement with a third party and seek specific relief against such a third party. (Para 16) Raman (D) v. R. Natarajan, 2022 LiveLaw (SC) 760

Sports Law - Board of Control of Cricket in India - Supreme Court approves amendments proposed to the Constitution of BCCI. Board of Control for Cricket in India v. Cricket Association of Bihar, 2022 LiveLaw (SC) 770

NOMINAL INDEX

1. Bajaj Auto Ltd. v. Ajanta Press and Mechanical Works, 2022 LiveLaw (SC) 769
2. Board of Control for Cricket in India v. Cricket Association of Bihar, 2022 LiveLaw (SC) 770
3. Chherturam @ Chainu v. State of Chhattisgarh, 2022 LiveLaw (SC) 761
4. Director of Teacher's Training Research Education v. OM Jessymol, 2022 LiveLaw (SC) 759
5. Essar House Pvt. Ltd. v. Arcellor Mittal Nippon Steel India Ltd., 2022 LiveLaw (SC) 765
6. Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd., 2022 LiveLaw (SC) 771
7. Kanchan Kumar v. State of Bihar, 2022 LiveLaw (SC) 763
8. Mohammed Latif Magrey v. Union Territory of Jammu and Kashmir, 2022 LiveLaw (SC) 756
9. Pharmacy Council of India v. Rajeev College of Pharmacy, 2022 LiveLaw (SC) 768
10. Raman (D) v. R. Natarajan, 2022 LiveLaw (SC) 760
11. S. Rukmini Madegowda v. State Election Commission, 2022 LiveLaw (SC) 766
12. S.P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan, 2022 LiveLaw (SC) 772
13. Shivali Enterprises v. Godawari (D), 2022 LiveLaw (SC) 762
14. Shree Enterprise Coal Sales Pvt. Ltd. v. Union of India, 2022 LiveLaw (SC) 774
15. State of Punjab v. Jasbir Singh, 2022 LiveLaw (SC) 776
16. State of Telangana v. B. Subba Rayadu, 2022 LiveLaw (SC) 767
17. Sudhamayee Pattnaik v. Bibhu Prasad Sahoo, 2022 LiveLaw (SC) 773
18. Sunil Kumar Verma v. State of Bihar, 2022 LiveLaw (SC) 775
19. Tulsi Ram Sahu v. State of Chhattisgarh, 2022 LiveLaw (SC) 764
20. Vinod Katara v. State of Uttar Pradesh, 2022 LiveLaw (SC) 757
21. Vishwanath Pratap Singh v. Election Commission of India, 2022 LiveLaw (SC) 758