SUBJECT WISE INDEX

Arbitration

2015 Arbitration Amendment not applicable though S.11 application was filed after it, if arbitration notice was issued pre-amendment. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service, 2023 LiveLaw (SC) 417

Award can be said to be suffering from 'patent illegality' only if it is an illegality apparent on the face of it. Reliance Infrastructure Ltd. v. State of Goa, 2023 LiveLaw (SC) 416

Court cannot, after setting aside the arbitration award, proceed to grant further relief by modifying the award. Indian Oil Corporation v. Sathyanarayana Service Station, 2023 LiveLaw (SC) 415

Bail

The Supreme Court directs to send Sessions Judge for training as he was not following judgments on bail. Satender Kumar Antil v. Central Bureau of Investigation, 2023 LiveLaw (SC) 410

Constitution

GNCTD vs LG: Supreme Court holds Delhi Govt has control over "services" excluding Public Order, Police & Land. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423

Delhi Govt vs LG | Democratically elected Govt. should have power to control its officers to ensure accountability. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423

"Governance of States can't be taken over by Union': Supreme Court underscores importance of federalism in Delhi Govt vs LG Case. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423

Criminal Law

Supreme Court sets aside conviction in 23 year old murder case; says prosecution failed to prove chain of circumstances. Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418

E-filing

The judiciary has to modernize and adapt to technology. The tribunals can be no exception. This can no longer be a matter of choice. If some judges are uncomfortable with e-files, the answer is to provide training to them and not to continue with old and outmoded ways of working. If a lawyer or litigant is compelled to file physical copies in addition to e-filed documents, then they will not resort to e-filing. (Para 30) Sanket Kumar Agarwal v. APG Logistics Pvt. Ltd; 2023 LiveLaw (SC) 406

It is utterly incomprehensible why NCLAT should insist on physical filing in addition to e-filing. This unnecessarily burdens litigants and the Bar and is a disincentive for e-filing. This duplication of effort is time consuming. It adds to expense. It leaves behind a carbon footprint which is difficult to efface. The judicial process has traditionally been guzzling paper. This model is not environmentally sustainable. (Para 30) Sanket Kumar Agarwal v. APG Logistics Pvt. Ltd; 2023 LiveLaw (SC) 406

Election Law

Maharashtra Case - Governor's decision for floor test wrong, but Uddhav Govt can't be restored as he resigned. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

'Governor can't enter the political arena, floor test not to decide intra-party disputes ': Supreme Court slams Maharashtra Governor. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Shiv Sena Case - Supreme Court refers 'Nabam Rebia' Judgment to larger bench; says it is in conflict with 'Kihoto Hollohan’ Judgment. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Shiv Sena Case | Speaker's decision recognising Eknath Shinde as leader & Gogawale as whip illegal; only political party can appoint whip & leader. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Test of legislative majority futile to decide who is 'real' Shiv Sena; ECI's recognition will apply prospectively. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Electricity

CERC can't go beyond express terms of contract; APTEL can't discover new "change in law" which parties never contemplated. Haryana Power Purchase Centre v. Sasan Power Ltd; 2023 LiveLaw (SC) 409

Evidence Law

Circumstantial Evidence - Failure to render plausible explanation - In a case based on circumstantial evidence, false explanation or non-explanation can only be used as an additional circumstance when the prosecution has proved the chain of circumstances leading to a definite conclusion with regard to the guilt of the accused. (Para 83) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418

Accused were not traceable - Once the body was found and police entered the scene, after the first information report, even if the accused had been away and innocent, his instinct of self-preservation would have got the better of him to evade arrest till better counsel prevailed upon him to surrender. Such conduct by itself is not reflective of a guilty mind. (Para 70) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418

Admissibility of the FSL Report - Handwriting Expert Opinion - though it is not impermissible to base a finding with regard to authorship of a document solely on the opinion of a handwriting expert but, as a rule of prudence, because of imperfect nature of the science of identification of handwriting and its accepted fallibility, such opinion has to be relied with caution and may be accepted if, on its own assessment, the Court is satisfied that the internal and external evidence relating to the document in question supports the opinion of the expert and it is safe to accept his opinion. (Para 65) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418

Handwriting Expert Opinion - Suicide Letter - Taking into account that the accused has denied the incriminating circumstance of writing the suicide letter and no internal or external evidence, save the expert report, supports the writing of suicide letter by the accused, though the expert evidence was admissible as an opinion on the writing in the suicide letter but, on overall assessment of the evidence led by the prosecution, solely on its basis, it would be extremely unsafe to hold that the suicide letter retrieved from the trouser of the deceased was written by the accused. (Para 69) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418

Examination

Directions interfering with the examination process by way of calling for answer-sheets, recording a finding on non- evaluation or mandating the process of re-evaluation cannot be issued by courts. Chief General Manager, BSNL v. M.J. Paul, 2023 LiveLaw (SC) 414

Hate Speech

Supreme Court directs all States/UTs to register suo motu FIRs in offences such as Section 153A, 153B, 295A and 506 of IPC etc, without any complaint being filed - Action be taken irrespective of the religion of the maker of the speech, so that the secular character of Bharat as envisaged by the Preamble is preserved. Ashwini Kumar Upadhyay v. Union of India, 2023 LiveLaw (SC) 405

Insolvency

IBC - No modified resolution plan can be directly placed before NCLT without being finally approved by the CoC. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

IBC - Principle of commercial wisdom not validate a decision taken by CoC in contravention of law. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

IBC - Ineligibility of resolution applicant as per S.164(2)(b) Companies Act can't be presumed unless competent authority declares disqualification. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Interpretation of Statutes

Nycil Prickly Heat Powder being a medicated powder is to be classified under Entry 127 of First Schedule of the Kerala General Sales Tax Act, 1963 (“KGST Act”) which is a specific entry in fiscal statute, rather than under Entry 79 of the KGST Act which is a general entry - the salutary rule for interpreting fiscal legislation is that words used in the statute must be given their plain meaning. Heinz India Ltd. v. State of Kerala, 2023 LiveLaw (SC) 411

Land Law

TN Highways Act can't be invalidated due to variance from RFCTLARR Act as it has received president's assent. C.S. Gopalakrishnan v. State of Tamil Nadu, 2023 LiveLaw (SC) 413

Property

Dispute between defendants regarding validity of sale deed can’t be considered in suit for possession instituted by plaintiff. Damodhar Narayan Sawale v. Shri Tejrao Bajirao Mhaske, 2023 LiveLaw (SC) 404

Recusal

The request of recusal is nothing but an attempt to indulge in Forum Shopping and Bench Hunting and to avoid the Bench with mala fide intention. Earlier, merely because some proceedings might have been heard by one of us before the High Court in connection with the present matter and/or proceedings and some observations might have been made against the petitioner on the delaying tactics, cannot be a ground to accede to the request made by the petitioner. As the prayer lacks bona fide and seems to have been made with mala fide intention to avoid the Bench for no valid reason, the prayer for recusal is rejected. (Para 5) Sanjiv Kumar Rajendrabhai Bhatt v. State of Gujarat, 2023 LiveLaw (SC) 420

Sales Tax

Prickly heat powder is not a ‘medicine’ for the purpose of sales tax in Kerala & Tamil Nadu - Prickly heat powders fall under the category of ‘medicated talcum powder’ and not ‘medicine’ for the purpose of sales tax under Kerala General Sales Tax Act, 1963 (“KGST Act”). Whereas, under the Tamil Nadu General Sales Tax Act, 1959 (“TNGST Act”), prickly heat powder would be taxed as a cosmetic. Heinz India Ltd. v. State of Kerala, 2023 LiveLaw (SC) 411

Scheduled Caste and Scheduled Tribes

Be vigilant before invoking stringent laws like SC-ST Act : Supreme Court 'reminds' police officers. Gulam Mustafa v. State of Karnataka, 2023 LiveLaw (SC) 421

Service Law

Pension cannot be denied to employee citing wrongful deductions made towards the CPF scheme. Retired employees cannot be made to suffer due to mistakes committed by their employers. Calcutta State Transport Corporation v. Ashit Chakraborty, 2023 LiveLaw (SC) 419

STATUTE WISE INDEX

Arbitration and Conciliation Act, 1996; Section 11(6), 11 (6A), 21 - Arbitration and Conciliation (Amendment) Act, 2015 - Where the notice invoking arbitration is issued prior to the coming into force of the 2015 Amendment Act, i.e., prior to 23.10.2015, and the application under Section 11 of the Arbitration Act, seeking appointment of an arbitrator, is made post the enforcement of the Amendment Act, the 2015 Amendment Act shall not be applicable. In Parmar Construction (2019) and Pradeep Vinod Construction (2020), the Supreme Court had specifically held that where the request to refer the dispute to arbitration was made before the 2015 Amendment Act came into effect, the unamended A&C Act shall be applicable for appointment of arbitrator. In BCCI (2018), the Apex Court has ruled the 2015 Amendment Act, 2015 to be prospective in nature only so far as the proceedings under Sections 34 & 36 of the Act are concerned. Further, the application under Section 11(6) was not in issue before the court. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service, 2023 LiveLaw (SC) 417

Arbitration and Conciliation Act, 1996; Section 34, 37 - An award could be said to be suffering from “patent illegality” only if it is an illegality apparent on the face of the award and not to be searched out by way of re-appreciation of evidence - The narrow scope of “patent illegality” cannot be breached by mere use of different expressions which nevertheless refer only to “error” and not to “patent illegality - if an Arbitrator construes the term of contract in a reasonable manner, the award cannot be set aside with reference to the deduction drawn from construction - The possibility of interference would arise only if the construction of the Arbitrator is such which could not be made by any fair minded and reasonable person. (Para 18, 25, 36) Reliance Infrastructure Ltd. v. State of Goa, 2023 LiveLaw (SC) 416

Arbitration and Conciliation Act, 1996; Section 34, 37 - The Court cannot, after setting aside the award, proceed to grant further relief by modifying the award. It must leave the parties to work out their remedies in a given case even where it justifiably interferes with the award. (Para 27) Indian Oil Corporation v. Sathyanarayana Service Station, 2023 LiveLaw (SC) 415

Arbitration and Conciliation Act, 1996; Section 34, 37 - View taken by the arbitrator in the facts, can be characterised as being perverse. It is undoubtedly a plausible view. It closes the door for the court to intervene. The finding of the arbitrator cannot be described as one betraying “a patent illegality". (Para 22) Indian Oil Corporation v. Sathyanarayana Service Station, 2023 LiveLaw (SC) 415

Code of Civil Procedure, 1908; Order VIII Rule 6A - An inter-se dispute on the validity of the sale deed executed between the defendants in respect of the suit land, cannot be considered in the suit for possession instituted by the plaintiff on the basis of a registered sale deed executed in its favour, as it would amount to adjudication of a right or a claim by way of counter-claim by one defendant against his co-defendant, which cannot be permitted by virtue of Order VIII Rule 6A of CPC. Damodhar Narayan Sawale v. Shri Tejrao Bajirao Mhaske, 2023 LiveLaw (SC) 404

Code of Criminal Procedure, 1973; Section 102 - Company's bank account cannot be frozen for criminal investigation against an unrelated party. Jermyn Capital LLC Dubai v. CBI, 2023 LiveLaw (SC) 412

Code of Criminal Procedure, 1973; Section 311A – Evidence Act, 1872; Section 73 - Specimen Signatures and Handwriting Samples - “to be a witness against himself” - Since specimen signatures and handwriting samples are not incriminating by themselves as they are to be used for the purpose of identification of the handwriting on a material with which the investigators are already acquainted with, compulsorily obtaining such specimens would not infringe the rule against self-incrimination enshrined in Article 20(3) of the Constitution of India. (Para 53, 57) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418

Code of Criminal Procedure, 1973; Section 482 - Where purely civil disputes, more often than not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. (Para 36) Gulam Mustafa v. State of Karnataka, 2023 LiveLaw (SC) 421

Constitution of India, 1905; Article 239AA - If a democratically elected government is not given the power to control the officers, the principle of triple chain of accountability will be redundant. If the officers stop reporting to the Ministers or do not abide by their directions, the principle of collective responsibility is affected. If "services" are excluded from legislative and executive domain, the Ministers would be excluded from controlling the civil servants who are to implement the executive decisions. if the officers feel they are insulated from the control of the government, it will dilute accountability and affect governance. Thus, in a democratic form of govt, real power of administration must rest on the elected arm of the government. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423

Constitution of India, 1905; Article 239AA - Legislative structure of Article 239AA excludes Entries 1, 2 and 18 of List II to Schedule VII (public order, police and land) from the power of the Delhi legislative assembly. The Union of India has executive power only over these three entries.Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423

Constitution of India, 1905; Article 239AA - the legislative assembly of Delhi embodies the principle of representative democracy, the Delhi assembly is given powers to legislate to represent the will of the people. Thus, Article 239AA of the Constitution must be interpreted in a manner to further the interest of representative democracy. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423

Constitution of India, 1905; Article 239AA - the National Capital Territory of Delhi has legislative and executive power over administrative services in the National Capital, excluding matters relating to public order, police and land. The Lieutenant Governor shall be bound by the decision of Delhi government over services, apart from public order, police and land. If services are excluded from its legislative and executive domain, the Ministers and the Executive who are charged with formulating policies in the territory of NCTD would be excluded from controlling the civil service officers who implement such executive decisions. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423

Constitution of India, 1950 – Floor Test - the decision to call for a floor test should be based on objective material and reasons which are relevant and germane to the exercise of discretion, and not extraneous to it. The Governor should not use their discretionary power to destabilise or displace democratically elected governments. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Constitution of India, 1950 – Governor - The discretion vested in the Governor to call for a floor test is not unfettered, and must be exercised with circumspection, in accordance with the limits placed on it by law. The Governor is a constitutional functionary who derives his authority from the Constitution. This being the case, the Governor must be cognizant of the constitutional bounds of the power vested in him. He cannot exercise a power that is not conferred on him by the Constitution or a law made under it. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Constitution of India, 1950 – Governor - The power of the Governor to act without the aid and advice of the Council of Ministers is of an extraordinary nature. The exercise of such power has ramifications on parliamentary democracy. Hence, the ambit of the exercise of such power by the Governor must be calibrated to meet the exigencies of situations where the Governor is satisfied on the basis of objective material that there is sufficient cause to warrant the exercise of their extraordinary power. The discretion to call for a floor test is not an unfettered discretion but one that must be exercised with circumspection, in accordance with the limits placed on it by law. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Constitution of India, 1950 - It is the "political party" which has the power to appoint a whip and the leader and not the "legislature party". Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Constitution of India, 1950 - Shiv Sena rift – At the highest, the various communications expressed the fact that a faction of MLAs disagreed with some policy decisions of the party. The course of action they wished to adopt in order to air their grievances and redress them was, at the time the floor test was directed to be conducted, uncertain. Whether they would choose to enter deliberations with their colleagues in the House or in the political party, or mobilise the cadres, or resign from the Assembly in protest, or opt to merge with another party, was uncertain. Therefore, the Governor erred in relying upon the resolution signed by a faction of the SSLP (Shiv Sena Legislature Party) MLAs to conclude that Mr. Thackeray had lost the support of the majority of the House. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Constitution of India, 1950 - Shiv Sena rift – Floor Test - Governor cannot enter political arena, floor test not to decide intra-party disputes - The Governor could not have entered the internal party dispute by ordering the floor test, particularly in absence of any "objective material" to dislodge the presumption of confidence of House ingrained in a democratically elected government. The letters by some MLAs (or even by then Leader of Opposition in this case) for a direction to the Chief Minister to prove his majority does not, taken alone, amount to a relevant reason to call for a floor test. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Constitution of India, 1950 - Shiv Sena rift – Floor Test - Neither the Constitution nor the laws enacted by Parliament provide for a mechanism by which disputes amongst members of a particular political party can be settled. They certainly do not empower the Governor to enter the political arena and play a role (however minute) either in inter-party disputes or in intra-party disputes. It follows from this that the Governor cannot act upon an inference that he has drawn that a section of the Shiv Sena wished to withdraw their support to the Government on the floor of the House. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Constitution of India, 1950 - Shiv Sena rift – Floor Test - the decision taken by the Governor to call for a floor test based on the rebellion of Eknath Shinde-led faction and to direct then CM Uddhav Thackeray to prove his majority on the floor of the House, was wrong. The Governor had no objective material on the basis of which he could doubt the confidence of the incumbent government. The resolution on which the Governor relied did not contain any indication that the MLAs wished to exit from the MVA government. The communication expressing discontent on the part of some MLAs is not sufficient for the Governor to call for a floor test. The Governor ought to apply his mind to the communication (or any other material) before him to assess whether the Government seemed to have lost the confidence of the House. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Constitution of India, 1950 - Shiv Sena rift – The Court cannot order the restoration of the Uddhav Thackeray government as he resigned without facing a floor test. Since Thackeray voluntarily resigned, the Governor was right in inviting Ekanth Shinde form the government with the support of BJP. Had Mr. Thackeray refrained from resigning from the post of the Chief Minister, this court could have considered the grant of the remedy of reinstating the government headed by him. The Court cannot quash a resignation which was voluntarily tendered. The Governor's earlier decision to order a floor test for the Maha Vikas Aghadi government as well as the Speaker's decision to appoint the whip nominated by Shinde group were incorrect. The correctness of the decision in Nabam Rebia is referred to a larger Bench of seven judges. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422

Constitution of India, 1950; Article 254 - The Tamil Nadu Highways Act 2001 cannot be invalidated on the ground that is provisions are at variance from the Right to Fair Compensation and Transparency in Land Acquisition; Rehabilitation and Resettlement Act, 2013. Since the Tamil Nadu Act has received the assent of the President under Article 254(2) of the Constitution of India, there is no basis in challenging the Act on the ground that is repugnant to the RFCTLARR Act. Though the State Act did not provide fixed timelines for acquiring land as compared to the new Land Acquisition Act (a central Legislature), the same would not vitiate the State Act. The Tamil Nadu Highways Act, 2001, is not liable to be invalidated on the ground that its provisions manifest discrimination or arbitrariness when compared with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition; Rehabilitation and Resettlement Act, 2013. The State Act stood protected after receiving the Presidential assent under Article 254(2) of the Constitution. The whole purpose of Article 254(2) was to protect a State enactment when it ran contrary to central legislation. Individual cases involving delay in the acquisition of land under the Highways Act would have to be dealt on merits and that itself would not invalidate the Act. C.S. Gopalakrishnan v. State of Tamil Nadu, 2023 LiveLaw (SC) 413

Electricity Act, 2003; Section 178 - In a case where the matter is governed by express terms of the contract, the Central Electricity Regulatory Commission cannot, even donning the garb of a regulatory body, go beyond the express terms of the contract. A regulation made under Section 178 of the Act has the effect of interfering and overriding the existing contractual relationship between the regulated entities. However, while it may be open for a regulation to extricate a party from its contractual obligations, the Commission cannot in the course of its adjudicatory power, use the nomenclature regulation to usurp this power to disregard the terms of the contract. The Appellate Tribunal for Electricity cannot discover a new ‘change in law’ which the parties have not contemplated as change in law, and the Tribunal cannot rewrite the contract and create a new bargain between the parties. Haryana Power Purchase Centre v. Sasan Power Ltd; 2023 LiveLaw (SC) 409

Evidence Act, 1872; Section 27 - Disclosure statements, consequential discoveries and their connect with crime - Having doubted the recovery of clothes at the instance of the accused, the circumstance that the clothes carried blood of same group as of the deceased is rendered meaningless because there is no admissible evidence to connect the clothes with the two accused. The disclosure statement made to the police, even if not discarded, was not admissible for proving that the clothes recovered were the one which the accused were wearing at the time of murder. The reason being that only so much of the disclosure would be admissible under Section 27 of the IEA, 1872 as distinctly relates to the fact thereby discovered which, in the instant case, would be the place where the clothes were concealed. (Para 76) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418

Insolvency and Bankruptcy Code, 2016 - A resolution applicant cannot be rendered ineligible to submit a resolution plan under the IBC, by assuming his/her disqualification under Section 164(2)(b) of the Companies Act, 2013, unless a categorical order disqualifying him/her to act as a director of any company is passed by the competent authority. There is no concept of ‘deemed disqualification’ under Section 164(2)(b) of the Companies Act, 2013. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Insolvency and Bankruptcy Code, 2016 - if a modified resolution plan, carrying however minor modification/revision, is not finally approved by Committee of Creditors (CoC), then presentation of such modified plan before the Adjudicating Authority for approval is an incurable material irregularity. No modified resolution plan can be placed directly before the NCLT, without being finally approved by the CoC. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Insolvency and Bankruptcy Code, 2016 - The IBC is a significant prong in economic reforms. It has radically reshaped the law relating to insolvency and bankruptcy. The manner in which the law is administered will have to keep pace with technology. Both the Union government in its rule making capacity and the administrative heads of tribunals must ensure a seamless transition to working in the electronic mode. A copy of this judgment shall be forwarded to the Chairperson of the NCLAT and to the Secretaries to the Union Government respectively in the Ministries of (i) Finance; (ii) Corporate Affairs; and (iii) Law and Justice for ensuring compliance and remedial steps. (Para 30, 31) Sanket Kumar Agarwal v. APG Logistics Pvt. Ltd; 2023 LiveLaw (SC) 406

Insolvency and Bankruptcy Code, 2016 - the principle of ‘Commercial Wisdom’ of the Committee of Creditors (“CoC”) cannot brush aside the shortcomings of the CoC in cases where decision making was done in contravention to a law which is in force for the time being. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Insolvency and Bankruptcy Code, 2016 - the Resolution Plan could not have been approved by the NCLT on twin reasons, (i) ineligibility of Successful Resolution Applicant in view of Section 88 of the Indian Trust Act; and (ii) the failure of Resolution Applicant to place the revised resolution plan before the CoC prior to seeking approval of the NCLT. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Insolvency and Bankruptcy Code, 2016 - There is no and there cannot be any concept of post facto approval of any resolution plan by CoC which had not been placed before it prior to the filing before the Adjudicating Authority. The requirement of CIRP Regulations, particularly of placing the resolution plan in its final form before the CoC, has to be scrupulously complied with. No alteration or modification in the process could be countenanced. We say so for the specific reason concerning law that if the process as adopted in the present matter is approved, the very scheme of the Code and CIRP regulations would be left open-ended and would be capable of inviting arbitrariness at any level. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

Insolvency and Bankruptcy Code, 2016; Section 61(2) - Time taken by Tribunal to provide certified copy of order ought to be excluded from computation of limitation. (Para 28) Limitation Act, 1963; Section 12 - Insolvency and Bankruptcy Code, 2016; Section 238A - the date on which the order was pronounced must be excluded while computing limitation for filing of appeal against such order. The NCLAT erred in not excluding date of pronouncement of order while computing limitation. (Para 23) Sanket Kumar Agarwal v. APG Logistics Pvt. Ltd; 2023 LiveLaw (SC) 406

Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947; Section 9 (1) - The Supreme Court set aside the order of the High Court who had ruled on the validity of the sale deed executed between the co-defendants with respect to the suit property, by holding the same as void in view of Section 9 (1) of the Fragmentation Act. Consequently, the sale deed executed by the defendants in favour of the plaintiff was also held as void. Damodhar Narayan Sawale v. Shri Tejrao Bajirao Mhaske, 2023 LiveLaw (SC) 404

Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947; Section 36A - While entertaining the contentions raised in respect of the Fragmentation Act, the Trial Court and the High Court did not take into consideration the statutory bar of jurisdiction contained under Section 36A of the Fragmentation Act, which barred the jurisdiction of the Civil Court under the Act. Further, it reckoned that since the written statement of the defendant only contained a vague averment referring to the Fragmentation Act, the same could not be construed as a counter-claim capable of being treated as a plaint. Consequently, it did not enable the court to pronounce a final judgment in the same suit, on the said issue. Damodhar Narayan Sawale v. Shri Tejrao Bajirao Mhaske, 2023 LiveLaw (SC) 404

Penal Code, 1860; Sections 302 – Murder – Accused taking the deceased from home on a bicycle - Even if we accept PW4 daughter’s testimony that the accused, on that fateful day, took the deceased on a bicycle to the fields that by itself is not conclusive to indicate that he took her to kill her; because, admittedly, the accused held agricultural holding and it is quite possible that he may have taken his wife to assist him in the agricultural operations. It is common practice in villages for ladies to help their menfolk in agricultural operations. The allegation that while taking her a declaration was made that she would be killed does not inspire our confidence for the reason that the motive set out by the prosecution for such a quarrel has not been proved. (Para 24) State of Madhya Pradesh v. Phoolchand Rathore, 2023 LiveLaw (SC) 408

Penal Code, 1860; Sections 302 – Murder - Circumstantial Evidence - there is no direct eye witness account of the murder. The body of the deceased was found in the open on a railway track. In such circumstances to sustain a conviction the court would have to consider — (i) whether the circumstances relied by the prosecution have been proved beyond reasonable doubt; (ii) whether those circumstances are of a definite tendency unerringly pointing towards the guilt of the accused; (iii) whether those circumstances taken cumulatively form a chain so far complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused; (iv) whether they are consistent only with the hypothesis of the accused being guilty; and (v) whether they exclude every possible hypothesis except the one to be proved. (Para 23) State of Madhya Pradesh v. Phoolchand Rathore, 2023 LiveLaw (SC) 408

Penal Code, 1860; Sections 302 – Murder – Disclosure Statement and Recovery - The prosecution placed heavy reliance on recovery of blood-stained clothes and stones from the hut of the accused on the basis of disclosure made by him - All papers were prepared at one go rendering the entire exercise of disclosure and consequential discovery/recovery doubtful - the High Court was justified in doubting the recovery of blood-stained clothes etc. at the instance of the accused from the hut and on the basis of a disclosure statement made by him. (Para 24) State of Madhya Pradesh v. Phoolchand Rathore, 2023 LiveLaw (SC) 408

Penal Code, 1860; Sections 302 – Murder – Extra Judicial Confession - The alleged extra judicial confession made by the accused to PW4 daughter was neither disclosed in the FIR nor in the previous statement of PW4 made during investigation. PW4 was confronted with that omission during her deposition in court. That apart, the testimony of PW4 with regard to the accused returning home, making extra judicial confession, changing clothes, washing blood-stained clothes and spreading them to dry has been found unreliable and shaky by the High Court for cogent reasons, which do not appear perverse as to warrant an interference. Thus, the circumstance of extra judicial confession is also not proved beyond doubt. (Para 24) State of Madhya Pradesh v. Phoolchand Rathore, 2023 LiveLaw (SC) 408

Penal Code, 1860; Sections 302 – Murder – Motive - the original motive for the crime was a dispute arising from keeping of jewellery by the deceased with her sister, whereas the statement of prosecution witnesses established that the jewellery had been returned much before the incident, therefore, there existed no cogent motive for the crime - the prosecution failed to prove the motive set out by it. No doubt absence of motive by itself may not be sufficient to dislodge the prosecution case if the other proven circumstances could form a chain so complete as to indicate that in all human probability it is the accused and no one else who committed the crime but, in a case based on circumstantial evidence, motive plays an important part. Because, not only it makes the story believable but also helps the court in fortifying an inference which may be drawn against the accused from other attending circumstances. (Para 24) State of Madhya Pradesh v. Phoolchand Rathore, 2023 LiveLaw (SC) 408

Penal Code, 1860; Sections 302 – Murder – Quarrels and disputes between husband and wife are everyday phenomena and not such an event which may create a strong suspicion of an impending crime much less murder. (Para 24) State of Madhya Pradesh v. Phoolchand Rathore, 2023 LiveLaw (SC) 408

Penal Code, 1860; Sections 302 – Murder – The Supreme Court upheld the decision of High Court which acquitted an accused who was awarded death sentence by the Trial Court for the alleged murder of his wife on the ground that prosecution has failed to prove the circumstances (i.e. motive, disclosure, recovery, and extra judicial confession) beyond reasonable doubt. State of Madhya Pradesh v. Phoolchand Rathore, 2023 LiveLaw (SC) 408

Penal Code, 1860; Sections 302 read with 34 and 120B – Evidence Act, 1872; Section 106 - Apartment from where the dead body was found stood in the tenancy and possession of accused - the prosecution has failed to prove a chain of incriminating circumstances as to conclusively point out that in all human probability it was the two accused or any one of them, and no one else, who had committed the murder. In such circumstances, even if the accused failed to explain as to how the dead body of the deceased was found in his apartment, an inference of his guilt cannot be drawn. In a nutshell, it is a case where the prosecution failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required for conviction on a criminal charge. (Para 86) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418

Representation of the People Act 1951; Section 62 - Supreme Court rejects challenge to Section 62(5) RP Act which denies prisoners right to vote. Aditya Prasanna Bhattacharya v. Union of India, 2023 LiveLaw (SC) 407

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - The officers, who institute an FIR, based on any complaint, are duty bound to be vigilant before invoking any provision of a very stringent statute, like the SC/ST Act, which imposes serious penal consequences on the concerned accused. The officer has to be satisfied that the provisions he seeks to invoke prima facie apply to the case at hand. We clarify that our remarks, in no manner, are to dilute the applicability of special/stringent statutes, but only to remind the police not to mechanically apply the law, dehors reference to the factual position. Gulam Mustafa v. State of Karnataka, 2023 LiveLaw (SC) 421

Trust Act, 1882; Section 88 - Advantage gained by fiduciary - The Bench has upheld the NCLAT’s order whereby the Successful Resolution Applicant was declared ineligible in terms of Trusts Act, since he had submitted two resolution plans, one in individual capacity and one in the capacity of Managing Trustee of the Trust. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403

NOMINAL INDEX

1. Aditya Prasanna Bhattacharya v. Union of India, 2023 LiveLaw (SC) 407
2. Ashwini Kumar Upadhyay v. Union of India, 2023 LiveLaw (SC) 405
3. C.S. Gopalakrishnan v. State of Tamil Nadu, 2023 LiveLaw (SC) 413
4. Calcutta State Transport Corporation v. Ashit Chakraborty, 2023 LiveLaw (SC) 419
5. Chief General Manager, BSNL v. M.J. Paul, 2023 LiveLaw (SC) 414
6. Damodhar Narayan Sawale v. Shri Tejrao Bajirao Mhaske, 2023 LiveLaw (SC) 404
7. Government of NCT of Delhi v. Union of India, 2023 LiveLaw (SC) 423
8. Gulam Mustafa v. State of Karnataka, 2023 LiveLaw (SC) 421
9. Haryana Power Purchase Centre v. Sasan Power Ltd; 2023 LiveLaw (SC) 409
10. Heinz India Ltd. v. State of Kerala, 2023 LiveLaw (SC) 411
11. Indian Oil Corporation v. Sathyanarayana Service Station, 2023 LiveLaw (SC) 415
12. Jermyn Capital LLC Dubai v. CBI, 2023 LiveLaw (SC) 412
13. M.K. Rajagopalan v Dr. Periasamy Pal ani Gounder, 2023 LiveLaw (SC) 403
14. Reliance Infrastructure Ltd. v. State of Goa, 2023 LiveLaw (SC) 416
15. Sanjiv Kumar Rajendrabhai Bhatt v. State of Gujarat, 2023 LiveLaw (SC) 420
16. Sanket Kumar Agarwal v. APG Logistics Pvt. Ltd; 2023 LiveLaw (SC) 406
17. Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418
18. Satender Kumar Antil v. Central Bureau of Investigation, 2023 LiveLaw (SC) 410
19. Shree Vishnu Constructions v. Engineer in Chief Military Engineering Service, 2023 LiveLaw (SC) 417
20. State of Madhya Pradesh v. Phoolchand Rathore, 2023 LiveLaw (SC) 408
21. Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 LiveLaw (SC) 422