Supreme Court Weekly Digests With Subject-Wise, Statute-Wise Index & Nominal Index [February 20 - 28]

Agricultural Produce Markets Act, 1961 (Rajasthan) - Section 9 - It cannot be said to be a mandatory statutory obligation of the Market Committees to provide shop/land/platform on rent/lease. (Para 9) 2022 LiveLaw (SC) 203

Arbitration and Conciliation Act, 1996 - Section 37 - The High Court has no jurisdiction to remand the matter to the same Arbitrator unless it is consented by both the parties that the matter be remanded to the same Arbitrator -The High Court either may relegate the parties for fresh arbitration or to consider the appeal on merits on the basis of the material available on record within the scope and ambit of the jurisdiction under Section 37. (Para 3) 2022 LiveLaw (SC) 199

Central Excise Rules, 1944 - Commissioner of Customs and Central Excise could not have invoked the powers under Rule 173Q(2) of the Central Excise Rules, 1944 on 26.03.2007 and 29.03.2007 for confiscation of land, buildings etc., when on such date, the said Rule 173Q(2) was not in the Statute books, having been omitted by a notification dated 12.05.2000. (Para 47) 2022 LiveLaw (SC) 208

Section 11E - Provisions contained in the SARFAESI Act, 2002 will have an overriding effect on the provisions of the Central Excise Act of 1944 - secured creditor will have priority over the dues of the Central Excise Department. (Paras 43, 44, 47) 2022 LiveLaw (SC) 208

Cinematograph Act, 1952 - An injunction action can be initiated even after a certificate is issued under the Cinematograph Act. The Court may examine the film and judge whether its public display, breaches the norms of decency or contravenes the law. A film which is defamatory or indecent or breaches copyright cannot be allowed to be exhibited only because a certificate has been issued. The examples are of course illustrative. (Para 10) 2022 LiveLaw (SC) 213

Guidelines for certification of films - A book or a film that illustrates the consequences of a social evil must necessarily show that social evil. A film that carries a message and depicts social circumstances of a group of underprivileged women is not impermissible. (Para 11) 2022 LiveLaw (SC) 213

The fact that the film has been certified by CBFC, which comprises of a body of experts prima facie shows compliance with the requirements of the guidelines. (Para 13) 2022 LiveLaw (SC) 213

Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Perversity in arriving at a factual finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 of the CPC - There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. [Referred to Municipal Committee, Hoshiarpur v. Punjab State Electricity Board (2010) 13 SCC 216, Illoth Valappil Ambunhi (D) By LRs. v. Kunhambu Karanavan 2019 SCC OnLine SC 1336 and K.N. Nagarajappa and Others v. H. Narasimha Reddy, LL 2021 SC 433] 2022 LiveLaw (SC) 193

Code of Criminal Procedure, 1973 - Sections 173(6) - The objective of Section 44, UAPA, Section 17, NIA Act, and Section 173(6) is to safeguard witnesses. They are in the nature of a statutory witness protection. On the court being satisfied that the disclosure of the address and name of the witness could endanger the family and the witness, such an order can be passed. They are also in the context of special provisions made for offences under special statutes. (Para 24) 2022 LiveLaw (SC) 216

Sections 173(6), 161, 207 - Even for protected witnesses declared so under Section 173(6) CrPC read with Section 44 UAPA, the accused can exercise their right under Sections 207 and 161 of the Cr.P.C to obtain copies of their redacted statements which would ensure that the identity of the witness not disclosed. 2022 LiveLaw (SC) 216

Section 438 - Indefinite adjournment in a matter relating to anticipatory bail, that too after admitting it, is detrimental to the valuable right of a person - When a person is before the Court and that too in a matter involving personal liberty, least what is expected is for such a person to be given the result one way or the other, based on the merit of his case and not push him to a position of uncertainty or be condemned without being heard, when it matters. 2022 LiveLaw (SC) 200

Section 439 - Bail - In the case of murder (under Section 302 IPC), it is expected that at least some reason would be given while reversing the order of the Trial Court, which had rejected the bail application by a reasoned order. (Para 4) 2022 LiveLaw (SC) 210

Section 482 - Entertaining a petition under Section 482 to quash the order taking cognizance by the Magistrate would be unjustified when the issue of proper authorisation and knowledge can only be an issue for trial. (Para 17) 2022 LiveLaw (SC) 196

Section 482 - Though the powers of the High Court under Section 482 of the Code of Criminal Procedure are wide and are in the nature of inherent power yet, the said power cannot be exercised suo motu in a sweeping manner and beyond the contours of what is stipulated under the said Section. (Para 7) 2022 LiveLaw (SC) 204

Section 482 - Writ Petition, under Article 32 of the Constitution of India, for the relief(s) prayed to quash and set aside the criminal proceedings/FIR ought not to have been filed - It is not expected that the relief which can be considered by the High Court under Section 482 Cr.P.C. to be considered in exercise of powers under Article 32 of the Constitution of India. (Para 1) 2022 LiveLaw (SC) 201

Constitution of India, 1950 - Article 12 - State - The determination of a body as a 'State' is not a rigid set of principles. What is to be seen is whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government, albeit if the control is mere regulatory, whether under statute or otherwise, it will not serve to make the body a State. Also, the presence of some element of public duty or function would not by itself suffice for bringing a body within the net of Article 12. (Para 6) 2022 LiveLaw (SC) 189

Article 12 - State - Whether Automotive Research Association of India Is A State -The majority of the members of the Association are associated with the manufacturers of the automobiles or their components and are not in service of the government. They are private players and from the motor vehicle industry - The main objective and function of the association relate to motor vehicles which is not directly or indirectly a field connected with functions of the government - One function assigned to the Association, which is not the primary and forms a small fraction of their activities and functions performed by the Association, would not matter. An overall and holistic view of the functions and activities, including the primary function(s), should be taken into consideration- Association is not an agency or instrumentality of the Government. Further, the Government does not have deep and pervasive control over it. (Para 18- 24) 2022 LiveLaw (SC) 189

Article 14 - Right to equality. The right against unfair State action is part of Article 14. Unequals being treated equally is tabooed under Article 14 of the Constitution. (Para 8) 2022 LiveLaw (SC) 219

Article 16(2) - Compassionate Appointment Policy - Descent cannot be a ground for denying employment under the scheme of compassionate appointments - A policy for compassionate appointment, which has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant. (Paras 9, 10) 2022 LiveLaw (SC) 205

Article 16(2) - Descent - ' Descent' must be understood to encompass the familial origins of a person. Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimant's legitimacy as their child. (Para 9) 2022 LiveLaw (SC) 205

Article 16(2) - The condition imposed by the Railway Board circular that compassionate appointment cannot be granted to children born from the second wife of a deceased employee - Rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy. Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee. [Referred to Union of India v. V.R. Tripathi (2019) 14 SCC 646 ] (Paras 2, 7) 2022 LiveLaw (SC) 205

Article 21 - While liberty is a dynamic concept capable of encompassing within it a variety of Rights, the irreducible minimum and at the very core of liberty, is freedom from unjustifiable custody. (Para 8) 2022 LiveLaw (SC) 219

Article 32 - Bail - Writ petition challenging the order of the Magistrate granting bail - Judge granting bail and Addl. District Judge who refused to interfere with said order impleaded by name - Conduct of the petitioner deprecated - No reason why the petitioner should have filed this writ petition directly in this court. 2022 LiveLaw (SC) 215

Article 32 - Delay by itself cannot be used as a weapon to Veto an action under Article 32 when violation of Fundamental Rights is clearly at stake. (Para 9) 2022 LiveLaw (SC) 219

Article 32 - In a given case, the Court may refuse to entertain a petition under Article 32 of the Constitution is solely a part of self-restraint which is exercised by the Court having regard to various considerations which are germane to the interest of justice as also the appropriateness of the Court to interfere in a particular case. The right under Article 32 of the Constitution remains a Fundamental Right and it is always open to a person complaining of violation of Fundamental Rights to approach this Court. This is subject to the power of the Court to relegate the party to other proceedings. (Para 7) 2022 LiveLaw (SC) 219

Article 32 - Ordinarily, the Court may insist on a cause of action and therefore, a person must be an aggrieved party to maintain a challenge - A person cannot be said to be aggrieved merely upon the issuance of an instrument or of a law by itself. In fact, the Court may refuse to examine the legality or the validity of a law or order on the basis that he may have no locus standi or that he is not an aggrieved person. No doubt, the Courts have recognized challenge to even a legislation at the hands of a public interest litigant. (Para 9) 2022 LiveLaw (SC) 219

Article 32 - The court has power of grant of compensation in the case of violation of Fundamental Rights. (Para 29) 2022 LiveLaw (SC) 219

Article 32 - Writ Petition, under Article 32 of the Constitution of India, for the relief(s) prayed to quash and set aside the criminal proceedings/FIR ought not to have been filed - It is not expected that the relief which can be considered by the High Court under Section 482 Cr.P.C. to be considered in exercise of powers under Article 32 of the Constitution of India. (Para 1) 2022 LiveLaw (SC) 201

Article 141 - Executive Decisions - When it comes to taking decisions which affect the rights of the citizens, it is the paramount duty of the Executive to enquire carefully about the implications of its decisions. At the very minimum, it must equip itself with the law which is laid down by the Courts and find out whether the decision will occasion a breach of law declared by the highest Court of the land - Respect for the decisions of the Courts holding the field are the very core of Rule of Law. Disregard or neglecting the position at law expounded by the Courts would spell doom for a country which is governed by the Rule of Law (Para 22, 23) 2022 LiveLaw (SC) 219

Article 226 - Writ Jurisdiction - Nature of the function performed by a body may be relevant for Article 226, considering the language of Article 226 which encapsulates a wide scope of legal right. (Para 22) 2022 LiveLaw (SC) 189

Article 342 - A person entitled to be treated as a member of Scheduled Tribe under Article 342, cannot be treated on par with a person who is brought in by an incompetent Body, viz., the State in the manner done. (Para 8) 2022 LiveLaw (SC) 219

Article 342 - Scheme - Manner in which the members of the Scheduled Tribe are to be recognised - Power with the President after consultation with the State to specify the Tribes which are to be treated as Scheduled Tribes in that State or the Union Territory as the case may be. Parliament is empowered to include or exclude from the list. (Para 12) 2022 LiveLaw (SC) 219

Consumer Protection Act, 1986 - If the NCDRC is of the opinion that the Surveyor was an unnecessary party or the pleadings are contradictory, it should have struck down the said party. The striking of surveyors from the array of parties would not make the complaint disjoined, as it was the duty of the NCDRC to strike off an unnecessary party. (Para 3) 2022 LiveLaw (SC) 211

The Act of 1986 is not a general law but a special law that has been enacted by Parliament specifically to protect the interest of consumers. [Overruled General Manager, Telecom v. M Krishnan and Another (2009) 8 SCC 481] (Para 18) 2022 LiveLaw (SC) 221

Section 2(1)(d) - Legislative history discussed - The legislative intent is to keep the commercial transactions out of the purview of the Act and at the same time, to give benefit of the Act to a person who enters into such commercial transactions, when he uses such goods or avails such services exclusively for the purposes of earning his livelihood by means of self ­employment. (Para 21 - 46) 2022 LiveLaw (SC) 197

Section 2(1)(d) - The 'business to business' disputes cannot be construed as consumer disputes, thereby defeating the very purpose of providing speedy and simple redressal to consumer disputes. (Para 47) 2022 LiveLaw (SC) 197

Section 2(1)(d) - The question, as to whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, "commercial purpose" is understood to include manufacturing/industrial activity or business ­to ­business transactions between commercial entities; that the purchase of the good or service should have a close and direct nexus with a profit­ generating activity; that the identity of the person making the purchase or the value of the transaction is not conclusive for determining the question as to whether it is for a commercial purpose or not. What is relevant is the dominant intention or dominant purpose for the transaction and as to whether the same was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. It has further been held that if the dominant purpose behind purchasing the good or service was for the personal use and the consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, then the question of whether such a purchase was for the purpose of "generating livelihood by means of self employment" need not be looked into. (Para 42) 2022 LiveLaw (SC) 197

Section 2(1)(d) - When a person avails a service for a commercial purpose, to come within the meaning of 'consumer' as defined in the said Act, he will have to establish that the services were availed exclusively for the purposes of earning his livelihood by means of self employment. (Para 45) 2022 LiveLaw (SC) 197

Section 2(o) - Existence of an arbitral remedy under the Indian Telegraph Act, 1885, will not oust the jurisdiction of the consumer forum - . It would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided under the Act of 1986, now replaced by the Act of 2019. (Para 16, 20) 2022 LiveLaw (SC) 221

Section 2(o) - Scope of expression 'service' discussed - a service of every description would fall within the ambit of the statutory provision. (Para 9) 2022 LiveLaw (SC) 221

Consumer Protection Act, 2019 - Section 2(42) - The insertion of the expression 'telecom services' in the definition which is contained in Section 2(42) of the Act of 2019 cannot, for the reasons which we have indicated be construed to mean that telecom services were excluded from the jurisdiction of the consumer forum under the Act of 1986 - Section 2(o) of the Act of 1986 wide enough to comprehend services of every description including telecom services. (Para 14, 20) 2022 LiveLaw (SC) 221

Employees Provident Fund And Miscellaneous Provisions Act, 1952 - Section 14B - Any default or delay in the payment of EPF contribution by the employer under the Act is a sine qua non for imposition of levy of damages under Section 14B - Mens rea or actus reus is not an essential element for imposing penalty/damages for breach of civil obligations/liabilities. [Referred to Union of India v. Dharmendra Textile Processors and others (2008) 13 SCC 369] (Para 17) 2022 LiveLaw (SC) 202

Foreigners Act, 1946 - Section 14C - Abetment - Mere passivity and insouciance will not tantamount to offence of abetment - The word 'abet' is an essential ingredient - 'Abet' means to aid, to encourage or countenance. An abetment of the offence occurs when a person instigates any person to do that offence or engages with another person(s) in doing that thing. 2022 LiveLaw (SC) 218

Appellant Engineer accused of facilitating visit by two Chinese citizens who were on tourist visas to Rewa Solar Plant Project site - No indication or allegation that the appellant was aware and had knowledge that the Chinese citizens had traveled on tourist visas - Criminal proceedings quashed. 2022 LiveLaw (SC) 218

Hindu Marriage Act, 1955 - Section 16 - Compassionate Appointment - The condition imposed by the Railway Board circular that compassionate appointment cannot be granted to children born from the second wife of a deceased employee - Rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy. Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee. [Referred to Union of India v. V.R. Tripathi (2019) 14 SCC 646] (Paras 2, 7) 2022 LiveLaw (SC) 205

Income Tax Act, 1961 - Section 37(1) - Explanation 1 contains within its ambit all such activities which are illegal/prohibited by law and/or punishable. (Para 17) 2022 LiveLaw (SC) 195

Section 37(1) - Denial of the tax benefit cannot be construed as penalizing the assessee pharmaceutical company. Only its participation in what is plainly an action prohibited by law, precludes the assessee from claiming it as a deductible expenditure. (Para 27) 2022 LiveLaw (SC) 195

Section 37(1) - Pharmaceutical companies' gifting freebies to doctors, etc. is clearly "prohibited by law", and not allowed to be claimed as a deduction under Section 37(1) - When acceptance of freebies is punishable by the MCI, pharmaceutical companies cannot be granted the tax benefit for providing such freebies, and thereby (actively and with full knowledge) enabling the commission of the act which attracts such opprobrium (Para 33, 22) 2022 LiveLaw (SC) 195

Insolvency and Bankruptcy Code, 2016 - Sections 13, 15 and 31 - The short point that is involved is as to whether the claim of the present respondent which was admittedly not lodged before the Resolution Professional after public notices were issued under Sections 13 and 15 of the IBC could be considered at this stage- We find that the present appeals are squarely covered by the law laid down by this Court in the case of Ghanashyam Mishra -(supra).Admittedly, the claim in respect of the demand which is the subject matter of the present proceedings was not lodged by the respondent no. 2 after public announcements were issued under Sections 13 and 15 of the IBC. As such, on the date on which the Resolution Plan was approved by the learned NCLT, all claims stood frozen, and no claim, which is not a part of the Resolution Plan, would survive. 2022 LiveLaw (SC) 207

Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 - Denial of the tax benefit cannot be construed as penalizing the assessee pharmaceutical company. Only its participation in what is plainly an action prohibited by law, precludes the assessee from claiming it as a deductible expenditure. (Para 27) 2022 LiveLaw (SC) 195

Pharmaceutical companies' gifting freebies to doctors, etc. is clearly "prohibited by law", and not allowed to be claimed as a deduction under Section 37(1) - When acceptance of freebies is punishable by the MCI, pharmaceutical companies cannot be granted the tax benefit for providing such freebies, and thereby (actively and with full knowledge) enabling the commission of the act which attracts such opprobrium (Para 33, 22) 2022 LiveLaw (SC) 195

Regulation 6.8 - Acceptance of freebies given by pharmaceutical companies is clearly an offence on part of the medical practitioner, punishable with varying consequences. (Para 18) 2022 LiveLaw (SC) 195

Motor Vehicles Act, 1988 - Awarding compensation on the head of Loss of amenities and happiness suffered by the claimant and his family members - Factors - The position of the claimant post­ accident and whether, he is in a position to enjoy life and/or happiness which he was enjoying prior to the accident. To what extent the claimant has lost the amenities in life and the happiness will depend on the facts of each case. (Para 8.1) 2022 LiveLaw (SC) 214

Awarding compensation on the head of pain, shock and suffering - Factors to be considered - Prolonged hospitalization; the grievous injuries sustained; the operations underwent and the consequent pain, discomfort and suffering - There cannot be straight jacket formula. It depends upon the facts and circumstances of each case and it varies from person to person who has suffered due to the accident. (Para 8) 2022 LiveLaw (SC) 214

Claimant is in coma even after a period of eight long years and that he will have to be permanently bedridden during his entire life - The amount of compensation awarded under the head loss of amenities and happiness of Rs.1,00,000/­ only is unreasonable and meagre - Enhanced to Rs.10,00,000/- The pain, suffering and trauma suffered by the claimant cannot be compensated in terms of the money. However, still it will be a solace to award suitable compensation under different heads including the pain, shock and suffering, loss of amenities and happiness of life - The amount of compensation under the head of pain, shock and suffering is enhanced to Rs.10,00,000/­-. (Para 7 ,8.1) 2022 LiveLaw (SC) 214

Section 2(30) - U.P. Motor Vehicles Taxation Act, 1997 - Section 2(h) - A financier who is in possession of the transport vehicle owing to non-payment of the loan amount is an "owner". (Para 8.3) 2022 LiveLaw (SC) 198

Motor Vehicles Taxation Act, 1997 (U.P.) - Sections 2(g), 2(h), 4, 9, 10, 12, 13, 14 and 20A - A financier of a motor vehicle/transport vehicle in respect of which a hire-purchase or lease or hypothecation agreement has been entered, is liable to tax from the date of taking possession of the said vehicle under the said agreement. (Para 12) 2022 LiveLaw (SC) 198

Sections 2(g), 2(h), 4, 9, 10, 12, 13, 14 and 20A - If, after the payment of tax, the vehicle is not used for a month or more, then such an owner may apply for refund under Section 12 of the Act, 1997 and has to comply with all the requirements for seeking the refund as mentioned in Section 12, and 26 on fulfilling and/or complying with all the conditions mentioned in Section 12(1), he may get the refund to the extent provided in sub-section (1) of Section 12, as even under Section 12(1), the owner / operator shall not be entitled to the full refund but shall be entitled to the refund of an amount equal to one-third of the rate of quarterly tax or one twelfth of the yearly tax, as the case may be, payable in respect of such vehicle for each thirty days of such period for which such tax has been paid. However, only in a case, which falls under sub-section (2) of Section 12 and subject to surrender of the necessary documents as mentioned in sub-section (2) of Section 12, the liability to pay the tax shall not arise, otherwise the liability to pay the tax by such owner/operator shall continue. (Para 12) 2022 LiveLaw (SC) 198

Section 9 - The requirement under law is to first pay the tax in advance as provided under Section 9 and thereafter to use the vehicle - It is 'pay the tax and use' and not 'use and pay the tax'. (Para 9) 2022 LiveLaw (SC) 198

National Investigation Agency Act, 2008 - Section 17 - The objective of Section 44, UAPA, Section 17, NIA Act, and Section 173(6) is to safeguard witnesses. They are in the nature of a statutory witness protection. On the court being satisfied that the disclosure of the address and name of the witness could endanger the family and the witness, such an order can be passed. They are also in the context of special provisions made for offences under special statutes. (Para 24) 2022 LiveLaw (SC) 216

Negotiable Instruments Act, 1881 - Section 138 and 142 - A.C. Narayanan vs. State of Maharashtra & Anr. (2014) 11 SCC 790 - The employment of the terms "specific assertion as to the knowledge of the power of attorney holder" and such assertion about knowledge should be "said explicitly" as stated in A.C. Narayanan (supra) cannot be understood to mean that the assertion should be in any particular manner, much less only in the manner understood by the accused in the case. All that is necessary is to demonstrate before the learned Magistrate that the complaint filed is in the name of the "payee" and if the person who is prosecuting the complaint is different from the payee, the authorisation therefor and that the contents of the complaint are within his knowledge. What can be treated as an explicit averment, cannot be put in a straitjacket but will have to be gathered from the circumstance and the manner in which it has been averred and conveyed, based on the facts of each case. The manner in which a complaint is drafted may vary from case to case and would also depend on the skills of the person drafting the same which by itself, cannot defeat a substantive right. However, what is necessary to be taken note of is as to whether the contents as available in the pleading would convey the meaning to the effect that the person who has filed the complaint, is stated to be authorized and claims to have knowledge of the same. In addition, the supporting documents which were available on the record by themselves demonstrate the fact that an authorized person, being a witness to the transaction and having knowledge of the case had instituted the complaint on behalf of the "payee" company and therefore, the requirement of Section 142 of N.I. Act was satisfied. (Para 17, 14) 2022 LiveLaw (SC) 196

Section 138 and 142 - Entertaining a petition under Section 482 to quash the order taking cognizance by the Magistrate would be unjustified when the issue of proper authorisation and knowledge can only be an issue for trial. (Para 17) 2022 LiveLaw (SC) 196

Section 138 and 142 - When a company is the payee of the cheque based on which a complaint is filed under Section 138 of N.I. Act, the complainant necessarily should be the Company which would be represented by an employee who is authorized. Prima­facie, in such a situation the indication in the complaint and the sworn statement (either orally or by affidavit) to the effect that the complainant (Company) is represented by an authorized person who has knowledge, would be sufficient - Such averment and prima facie material is sufficient for the learned Magistrate to take cognizance and issue process. If at all, there is any serious dispute with regard to the person prosecuting the complaint not being authorized or if it is to be demonstrated that the person who filed the complaint has no knowledge of the transaction and, as such that person could not have instituted and prosecuted the complaint, it would be open for the accused to dispute the position and establish the same during the course of the trial. (Para 17) 2022 LiveLaw (SC) 196

Penal Code, 1860 - Section 34 - A co-perpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualized the possibility or probability of the final act. If the final outcome or offence committed is distinctly remote and unconnected with the common intention, he would not be liable - Merely accompanying the principal accused may not establish common intention - A co-perpetrator, who shares a common intention, will be liable only to the extent that he intends or could or should have visualized the possibility or probability of the final act - The ambit should not be extended so as to hold a person liable for remote possibilities, which were not probable and could not be envisaged. (Para 13,19) 2022 LiveLaw (SC) 220

Appeal filed by two accused concurrently convicted in a murder case by invoking Section 34 IPC - Allowed - They are entitled to the benefit of doubt on the ground that it cannot be with certainty held that they had common intention - Given the acts attributed to them, the assault by the main accused and the resultant outcome were unexpected. 2022 LiveLaw (SC) 220

Section 34 - For Section 34 to apply, it is not necessary that the plan should be pre-arranged or hatched for a considerable time before the criminal act is performed. Common intention can be formed just a minute before the actual act happens. (Para 18) 2022 LiveLaw (SC) 220

Section 34 - Relevant Facts - The manner in which the accused arrived, mounted the attack, nature and type of injuries inflicted, the weapon used, conduct or acts of the co-assailants/perpetrators, object and purpose behind the occurrence or the attack etc. are all relevant facts from which inference has to be drawn to arrive at a conclusion whether or not the ingredients of Section 34 IPC are satisfied. (Para 18) 2022 LiveLaw (SC) 220

Section 34 - Section 34 IPC comes into operation against the co-perpetrators because they have not committed the principal or main act, which is undertaken/performed or is attributed to the main culprit or perpetrator. Where an accused is the main or final perpetrator, resort to Section 34 IPC is not necessary as the said perpetrator is himself individually liable for having caused the injury/offence. A person is liable for his own acts. (Para 18) 2022 LiveLaw (SC) 220

Section 34 - The expression "common intention" should also not be confused with "intention" or "mens rea" as an essential ingredient of several offences under the IPC - For some offences, mental intention is not a requirement but knowledge is sufficient and constitutes necessary mens rea. Section 34 IPC can be invoked for the said offence also - In some cases, intention, which is ingredient of the offence, may be identical with the common intention of the co-perpetrators, but this is not mandatory. (Para 18) 2022 LiveLaw (SC) 220

Section 302 - Appeal against concurrent conviction under Section 302 - Excessive number of injuries do not ipso facto lead to an inference about involvement of more than one person; rather the nature of injuries and similarity of their size/dimension would only lead to the inference that she was mercilessly and repeatedly stabbed by the same weapon and by the same person - The evidence of the eye-witness to the incident, remains unimpeachable and has been believed by the two Courts - Do not find the present one to be a case of manifest illegality so as to call for interference. 2022 LiveLaw (SC) 217

Section 499 - Defamation - Exceptions. (Para 18) 2022 LiveLaw (SC) 213

Section 499 - Defamation - Section 306 of the Indian Succession Act which speaks of the rights of administrators and executors of the estate of the deceased, does not bar family members and near relatives covered by Section 499 of the Indian Penal Code from seeking injunction - A right in tort may arise when any imputation concerning a deceased person harms the reputation of that person, if living or is intended to be hurtful to the feelings of his family members or other near relatives. (Para 19) 2022 LiveLaw (SC) 213

Prevention of Corruption Act, 1988 - Section 7, 13 - The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act - The Failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder [Referred to P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh (2015) 10 SCC 152]. (Para 7) 2022 LiveLaw (SC) 192

Protection of Children from Sexual Offences Act, 2012 - Section 6 - Once, prima facie, it appears from the material before the Court that the appellant was barely thirteen years of age on the date when the alleged offence took place, both the grounds, namely that "there was a love affair" between the appellant and the second respondent as well as the alleged refusal to marry, are circumstances which will have no bearing on the grant of bail. Having regard to the age of the prosecutrix and the nature and gravity of the crime, no case for the grant of bail was established. The order of the High Court granting bail has to be interfered with since the circumstances which prevailed with the High Court are extraneous in view of the age of the prosecutrix, having regard to the provisions of Section 376 of IPC and Section 6 of POCSO. 2022 LiveLaw (SC) 194

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Section 14(1) - Being an officer of the court and appointed by the CMM/DM, the acts done by the Advocate Commissioner would receive immunity under Section 14(3) of the 2002 Act — as an officer authorised by the CMM/DM - There must be a presumption that if an advocate is appointed as commissioner for execution of the orders passed by the CMM/DM under Section 14(1) of the 2002 Act, that responsibility and duty will be discharged honestly and in accordance with rules of law. (Para 42) 2022 LiveLaw (SC) 212

It is open to the District Magistrate or the Chief Metropolitan Magistrate can appoint an advocate commissioner to assist him/her in execution of the order passed under Section 14(1) - Advocate must be regarded as an officer of the court and, in law, subordinate to the concerned CMM/DM within their jurisdiction. (Para 44) 2022 LiveLaw (SC) 212

Officer subordinate - "Functional subordination" test applied - There is intrinsic de jure functional subordinate relationship between the CMM/DM and the advocate being an officer of the court - It does not follow that the advocate so appointed needs to be on the rolls in the Office of the CMM/DM or in public service. (Para 42) 2022 LiveLaw (SC) 212

Provisions contained in the SARFAESI Act, 2002 will have an overriding effect on the provisions of the Central Excise Act of 1944 - secured creditor will have priority over the dues of the Central Excise Department. (Paras 43, 44, 47) 2022 LiveLaw (SC) 208

Taking of possession of the secured assets and documents relating thereto and to forward the same to the secured creditor at the earliest opportunity is a ministerial act. (Para 28) 2022 LiveLaw (SC) 212

While entrusting the act of taking possession of the secured assets consequent to the order passed under Section 14(1) of the 2002 Act to any officer subordinate to him, the CMM/DM ought to exercise prudence in appointing such person who will be capable of executing the orders passed by him. Merely because he has power to appoint "any" officer subordinate to him, it would not permit him to appoint a peon or clerk, who is incapable of handling the situation. (Para 30) 2022 LiveLaw (SC) 212

Succession Act, 1925 - Section 306 - Defamation - Section 306 of the Indian Succession Act which speaks of the rights of administrators and executors of the estate of the deceased, does not bar family members and near relatives covered by Section 499 of the Indian Penal Code from seeking injunction - A right in tort may arise when any imputation concerning a deceased person harms the reputation of that person, if living or is intended to be hurtful to the feelings of his family members or other near relatives. (Para 19) 2022 LiveLaw (SC) 213

Telegraph Act, 1885 - Section 7B - Existence of an arbitral remedy under the Indian Telegraph Act, 1885, will not oust the jurisdiction of the consumer forum - . It would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided under the Act of 1986, now replaced by the Act of 2019. (Para 16, 20) 2022 LiveLaw (SC) 221

Unlawful Activities (Prevention) Act, 1967 - Section 44 - Even for protected witnesses declared so under Section 173(6) CrPC read with Section 44 UAPA, the accused can exercise their right under Sections 207 and 161 of the Cr.P.C to obtain copies of their redacted statements which would ensure that the identity of the witness not disclosed. 2022 LiveLaw (SC) 216

The objective of Section 44, UAPA, Section 17, NIA Act, and Section 173(6) is to safeguard witnesses. They are in the nature of a statutory witness protection. On the court being satisfied that the disclosure of the address and name of the witness could endanger the family and the witness, such an order can be passed. They are also in the context of special provisions made for offences under special statutes. (Para 24) 2022 LiveLaw (SC) 216

Value Added Tax Act, 2006 (Tamil Nadu) - Entry 44 of Part B of the Fourth Schedule - Hank Yarn - When the Entry in question specifically provides for exemption to the goods described as "Hank Yarn" without any ambiguity or qualification, its import cannot be restricted by describing it as being available only for the hank form of one raw material like cotton nor could it be restricted with reference to its user industry - Entry in question is clear, direct and unambiguous. (Para 11-12) 2022 LiveLaw (SC) 1912022 LiveLaw (SC) February Subject-wise Index Part 4 [Feb 20 - 28, 2022]

Accident

Position Of Claimant Post Accident Relevant Factor To Determine Compensation Under Head Of 'Loss Of Amenities & Happiness'. 2022 LiveLaw (SC) 214

Advocate

Advocate Commissioners - The Advocate Commissioner is not a new concept. The advocates are appointed as Court Commissioner to perform diverse administrative and ministerial work as per the provisions of Code of Civil Procedure and Code of Criminal Procedure. (Para 36) 2022 LiveLaw (SC) 212

Role of the advocate as being an officer of the court - An advocate is a guardian of constitutional morality and justice equally with the Judge. He has an important duty as that of a Judge. He bears responsibility towards the society and is expected to act with utmost sincerity and commitment to the cause of justice. He has a duty to the court first. As an officer of the court, he owes allegiance to a higher cause and cannot indulge in consciously misstating the facts or for that matter conceal any material fact within his knowledge - An advocate should be diligent and his conduct should conform to the requirements of the law by which he plays a vital role in the preservation of society and justice system. As an officer of the court, he is under a higher obligation to uphold the rule of law and justice system. (Para 37 - 39) 2022 LiveLaw (SC) 212

Arbitration

Court U/s 37 Arbitration Act Has No Jurisdiction To Remand The Matter To Same Arbitrator Unless Consented By Both Parties. 2022 LiveLaw (SC) 199

Bail

Anticipatory Bail Applications - When an application for anticipatory bail accompanied by an application for ad-interim relief is listed before the court, it should decide the same one way or the other, so far as the ad-interim prayer or should have taken up for consideration after giving some reasonable time to the State. Even if admitted, the court should list the same for final disposal on a specific date - Not giving any specific date is not a procedure which can be countenanced. 2022 LiveLaw (SC) 200

High Court While Reversing Trial Court's Order Of Rejecting Bail U/S 302 Must Give Some Reasons. 2022 LiveLaw (SC) 210

Indefinite Adjournment In Anticipatory Bail Matter Is Detrimental To Valuable Right Of A Person. 2022 LiveLaw (SC) 200

Writ petition challenging the order of the Magistrate granting bail - Judge granting bail and Addl. District Judge who refused to interfere with said order impleaded by name - Conduct of the petitioner deprecated - No reason why the petitioner should have filed this writ petition directly in this court. 2022 LiveLaw (SC) 215

Blacklisting

"Debarment" is recognised and often used as an effective method for disciplining deviant suppliers/contractors who may have committed acts of omission and commission. It is for the State or appropriate authority to pass an order of blacklisting/debarment in the facts and circumstances of the case - "Debarment" is never permanent and the period of debarment would invariably depend upon the nature of the offence committed by the erring contractor. (Para 8.7 and 9.1) 2022 LiveLaw (SC) 206

Duration Of Blacklisting Cannot Be Solely 'Per Offence' : Supreme Court Disapproves Guidelines Framed By Odisha Govt. 2022 LiveLaw (SC) 206

Guidelines issued by Odisha Government that blacklisting period per offence shall be limited to three years subject to an overall maximum cumulative period of ten years for multiple offences - Disapproved - Duration of blacklisting cannot be solely per offence. Seriousness of the lapse and the incident and/or gravity of commission and omission on the part of the contractor which led to the incident should be the relevant considerations. In a given case, it may happen that the commission and omission is very grave and because of the serious lapse and/or negligence, a major incident would have taken place. In such a case, it may be the contractor's first offence, in such a case, the period/duration of the blacklisting/banning can be more than three years. However, as the said guidelines are not under challenge, we rest the matter there and leave it to the State Government to suitably amend and/or modify the said office memorandum. However, what we have observed above can be a guide while determining the period of debarment/blacklisting. (Para 9.1) 2022 LiveLaw (SC) 206

Show cause notice was issued upon the contractor by which the contractor was called upon to show cause why he be not blacklisted; the show cause notice was replied to by the contractor and thereafter, after considering the material on record and the reply submitted by the contractor and having found the serious lapses which led to a serious incident in which one person died and eleven others were injured, the State Government took a conscious decision to blacklist the contractor. Therefore, it cannot be said the order blacklisting the contractor was in violation of principles of natural justice. (para 8.5) 2022 LiveLaw (SC) 206

Caste Certificates

'Lohar Is Not Same As Lohara': Supreme Court Quashes Bihar Govt. Notification That Approved Issuance Of Scheduled Tribe Caste Certificates To Lohar Community. 2022 LiveLaw (SC) 219

Writ Petition Challenging Bihar Government notification approving issuance of caste certificate to Lohar community - Allowed - Lohars were not included as members of the Scheduled Tribe right from the beginning and they were, in fact, included as members of the OBCs in the State of Bihar - Lohar is not same as Lohara. Including Lohars alongside 'Lohara' is clearly illegal and arbitrary - State to pay costs of Rs. 5 Lakhs to the petitioners. 2022 LiveLaw (SC) 219

Certification of Films

SLP Against Bombay High Court order refusing to grant interim injunction against release of the film "Gangubai Kathiawadi" - Dismissed - The film certificate issued by the CBFC prima facie shows that the film is not defamatory. Prima facie, it appears that the movie is an artistic expression within the parameters of law. (Para 25) 2022 LiveLaw (SC) 213

Cheque

Section 138 NI Act - Prima Facie Indication That Complaint Is Filed By Authorized Person Of Company Sufficient For Magistrate To Take Cognisance. 2022 LiveLaw (SC) 196

Civil Law

Civil Litigation - The judgment-creditor is entitled to enjoy the fruit of the litigation within a reasonable time - In our justice delivery system, the real litigation starts only after the decree is passed and the judgment-creditor has to wait for a number of years for enjoying the fruit of the decree and the litigation. If such a delayed tactics is permitted, the litigant would lose confidence in the justice delivery system. Every litigation has to put to an end at a particular time. 2022 LiveLaw (SC) 209

Decree Of 1989 Not Executed : Supreme Court Expresses Anguish; Says Judgment Creditor Entitled To Enjoy Fruits Of Decree In Reasonable Time. 2022 LiveLaw (SC) 209

Eviction order passed in 1989 yet not permitted to be executed by the judgment debtor by initiating the proceedings one after another - This is a clear example of the abuse of the process of law and the Court and not permitting the judgment-creditor to get the benefit under the decree which is passed in his favour in the year 1989 - Special Leave Petitions dismissed with cost which is quantified at Rs.25,000/- 2022 LiveLaw (SC) 209

Compassionate Appointment

Compassionate Appointment Policy Cannot Discriminate Against 'Illegitimate' Children Of Deceased Employee. 2022 LiveLaw (SC) 205

Conflict of Laws

If there is any inconsistency between two legislations, the later law, even if general in nature, would override an earlier special law. (Para 18) 2022 LiveLaw (SC) 221

Constitution of India

Presence Of Some Element Of Public Duty Or Function Would Not By Itself Make A Body 'State' Under Article 12. 2022 LiveLaw (SC) 189

Consumer Law

Consumer Complaint Against Telecom Companies Maintainable. 2022 LiveLaw (SC) 221

NCDRC Should Not Return Complaint Unadjudicated For Misjoinder Of Parties. 2022 LiveLaw (SC) 211

Pure 'Business To Business' Disputes Cannot Be Construed As Consumer Disputes.

Corruption

PC Act - Mere Acceptance Of Amount, Without Proof Of Bribe Demand, Will Not Establish Offence Under Section 7. 2022 LiveLaw (SC) 192

Criminal Law

High Courts Should Not Exercise Section 482 CrPC Powers Suo Motu In A Sweeping Manner. 2022 LiveLaw (SC) 204

No Offence Of Abetment Under Section 14C Of Foreigners Act If There Was No Awareness About Visa Status Of Foreigners. 2022 LiveLaw (SC) 218

Section 34 IPC Not Attracted When Final Outcome Or Offence Committed Is Distinctly Remote And Unconnected With Common Intention. 2022 LiveLaw (SC) 220

Section 207 CrPC - Accused Can Be Given Copy Of Protected Witness's Statement With Identity Redacted. 2022 LiveLaw (SC) 216

Supreme Court Deprecates Impleading Judges In Petition Challenging Grant Of Bail; Imposes Cost. 2022 LiveLaw (SC) 215

Writ Petition Under Article 32 To Quash FIR/Criminal Proceedings Cannot Be Entertained. 2022 LiveLaw (SC) 201

Defamation

Civil Defamation - Section 306 of the Indian Succession Act which speaks of the rights of administrators and executors of the estate of the deceased, does not bar family members and near relatives covered by Section 499 of the Indian Penal Code from seeking injunction - A right in tort may arise when any imputation concerning a deceased person harms the reputation of that person, if living or is intended to be hurtful to the feelings of his family members or other near relatives. (Para 19) 2022 LiveLaw (SC) 213

Mere hurting of sensibility is not defamation, if the person said to be defamed is not lowered in character or credit in the eyes of others. (Para 22) 2022 LiveLaw (SC) 213

Mere Hurting Of Sensibilities Not Defamation; CBFC Certificate Prima Facie Shows Film Not Defamatory. 2022 LiveLaw (SC) 213

Evidence Law

Eye Witness's Evidence Cannot Be Discarded Merely Because He Did Not Intervene When Deceased Was Attacked. 2022 LiveLaw (SC) 217

The evidence of eye-witness cannot be discarded only for the reason that he allegedly did not raise any alarm or did not try to intervene when the deceased was being ferociously assaulted and stabbed. 2022 LiveLaw (SC) 217

Insolvency and Bankruptcy

Claim Which Is Not Part Of Resolution Plan Doesn't Survive. 2022 LiveLaw (SC) 207

Interpretation of Statutes

Difference and distinction between a charging provision in a fiscal statute and an exemption notification - The principle that in the event of ambiguity in a provision in a fiscal statute, a construction favourable to the assessee should be adopted is concerned, shall not be applicable to construction of an exemption notification, when it is clear and not ambiguous - It will be for the assessee to show that he comes within the purview of the notification. Eligibility clause in relation to exemption notification must be given effect to as per the language and not to expand its scope deviating from its language. (Para 8.4) 2022 LiveLaw (SC) 203

External Aid For Interpretation Cannot Be Employed When An 'Exemption' Entry Is Clear And Unambiguous. 2022 LiveLaw (SC) 191

Interpretation of law has two essential purposes: one is to clarify to the people governed by it, the meaning of the letter of the law; the other is to shed light and give shape to the intent of the law maker. And, in this process the courts' responsibility lies in discerning the social purpose which the specific provision subserves. (Para 34) 2022 LiveLaw (SC) 195

Taxation - Exemption Entry - When the exemption Entry is clear and unambiguous, no external aid for interpretation is called for, whether in the form of Budget speech or any other notification under any other enactment. (Para 11) 2022 LiveLaw (SC) 191

Taxation Statutes - Exemption Notifications - The exemption notification should not be liberally construed and beneficiary must fall within the ambit of the exemption and fulfill the conditions thereof. In case such conditions are not fulfilled, the issue of application of the notification does not arise at all by implication - The notification has to be read as a whole. An exception and/or an exempting provision in a taxing statute should be construed strictly and given a meaning according to legislative intendment - It is not open to the court to ignore the conditions prescribed in the relevant policy and the exemption notifications issued in that regard.The Statutory provisions providing for exemption have to be interpreted in light of the words employed in them and there cannot be any addition or subtraction from the statutory provisions. (Para 8.1 - 8.3) 2022 LiveLaw (SC) 203

Principle of interpretation of taxing statutes – that they need to be interpreted strictly – cannot sustain when it results in an absurdity contrary to the intentions of the Parliament. (Para 33) 2022 LiveLaw (SC) 195

The construct of the provision must depend on the context of the legislative intent and the purpose for which such dispensation has been envisaged. The setting in which the expression has been used in the concerned section of the Act would assume significance. (Para 16) 2022 LiveLaw (SC) 212

Interim Relief

The court has to consider the prima facie case made out by the applicant for interim relief, both on the question of locus standi to sue, if questioned and on the merits of the prayer for interim relief. The Court also has to consider the balance of convenience. (Para 21) 2022 LiveLaw (SC) 213

Jurisdiction

An ouster of jurisdiction cannot be lightly assumed unless express words are used or such a consequence follows by necessary implication. (Para 16) 2022 LiveLaw (SC) 221

Labour Law

Mens Rea Not Essential Element For Imposing Penalty On Employer For Default/Delay To Deposit EPF Contribution. 2022 LiveLaw (SC) 202

Motor Accident Claims

Awarding compensation on the head of Loss of amenities and happiness suffered by the claimant and his family members - Factors - The position of the claimant post­ accident and whether, he is in a position to enjoy life and/or happiness which he was enjoying prior to the accident. To what extent the claimant has lost the amenities in life and the happiness will depend on the facts of each case. (Para 8.1) 2022 LiveLaw (SC) 214

Awarding compensation on the head of pain, shock and suffering - Factors to be considered - Prolonged hospitalization; the grievous injuries sustained; the operations underwent and the consequent pain, discomfort and suffering - There cannot be straight jacket formula. It depends upon the facts and circumstances of each case and it varies from person to person who has suffered due to the accident. (Para 8) 2022 LiveLaw (SC) 214

Claimant is in coma even after a period of eight long years and that he will have to be permanently bedridden during his entire life - The amount of compensation awarded under the head loss of amenities and happiness of Rs.1,00,000/­ only is unreasonable and meagre - Enhanced to Rs.10,00,000/- The pain, suffering and trauma suffered by the claimant cannot be compensated in terms of the money. However, still it will be a solace to award suitable compensation under different heads including the pain, shock and suffering, loss of amenities and happiness of life - The amount of compensation under the head of pain, shock and suffering is enhanced to Rs.10,00,000/­-. (Para 7 ,8.1) 2022 LiveLaw (SC) 214

Partition Suit

In a suit for partition, the position of the plaintiff and the defendant can be interchangeable. Each party adopts the same position with the other parties - So long as the suit is pending, a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can ask for being transposed as a defendant. (Para 12) 2022 LiveLaw (SC) 193

Plaintiff is not disentitled to relief in the second appeal merely on the ground that they have not challenged the judgment and decree of the trial court which denied their claims before the First Appellate Court. 2022 LiveLaw (SC) 193

POCSO

'Love Affair' Irrelevant Ground For Bail When Victim Is A Minor Girl. 2022 LiveLaw (SC) 194

Practice and Procedure

Procedure adopted by the High Court which, on the 'special mentioning' made by the Additional Public Prosecutor, directed transfer of the cases/final reports filed/pending in the Special Courts exclusively to deal with the Land Grabbing Cases to the respective jurisdictional Courts is unknown to law - The practice of passing such orders on a 'special mentioning' that too, in a disposed of matter is to be deprecated. (Para 4) 2022 LiveLaw (SC) 204

SARFAESI

Magistrates Can Appoint & Authorize Advocate Commissioners To Take Possession Of Secured Assets U/Sec 14 SARFAESI Act. 2022 LiveLaw (SC) 212

SARFAESI Act Has Overriding Effect On Central Excise Act; Dues Of Secured Creditor Has Priority Over Dues Of Central Excise Dept. 2022 LiveLaw (SC) 208

Show Cause Notice

Fundamental purpose behind the serving of a show-­cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement is the nature of action which is proposed to be taken for such a breach. [Referred to Gorkha Security Services v. Govt. (NCT of Delhi) & Ors., (2014) 9 SCC 105] (Para 8.6) 2022 LiveLaw (SC) 206

Tax

Financier Possessing Vehicle Based On Hire-Purchase Or Hypothecation Agreement Liable To Pay Tax Under U.P. Motor Vehicles Taxation Act. 2022 LiveLaw (SC) 198

Gifting Freebies To Doctors Prohibited By Law ; Pharma Companies Cannot Claim It As Deduction U/Sec 37(1) Income Tax Act. 2022 LiveLaw (SC) 195

Service Tax - Exemption Notification Should Not Be Liberally Construed ; Assessee Has To Show That He Comes Within Its Purview. 2022 LiveLaw (SC) 203

To Determine If Service Is For Job Work Eligible For Tax Exemption, Agreement Has To Be Read As Composite Whole. 2022 LiveLaw (SC) 190

Whether contract is for job work or for supply of manpower - Agreement has to be read as a composite whole - In this case, though ostensibly, the agreement contains a provision for payment on the basis of the rates mentioned in Schedule II, the agreement has to be read as a composite whole. On reading the agreement as a whole, it is apparent that the contract is pure and simple a contract for the provision of contract labour. An attempt has been made to camouflage the contract as a contract for job work to avail of the exemption from the payment of service tax. The judgment of the Tribunal does not, in the circumstances, suffer from any error of reasoning (Para 17) 2022 LiveLaw (SC) 190

Torts

Civil Defamation - Section 306 of the Indian Succession Act which speaks of the rights of administrators and executors of the estate of the deceased, does not bar family members and near relatives covered by Section 499 of the Indian Penal Code from seeking injunction - A right in tort may arise when any imputation concerning a deceased person harms the reputation of that person, if living or is intended to be hurtful to the feelings of his family members or other near relatives. (Para 19) 2022 LiveLaw (SC) 213

For an actionable tort, there has to be a wrongful act, and damage or loss or inconvenience or annoyance caused to another, by reason of the wrongful act. Annoyance or inconvenience or loss alone does not give right to a legal action. The question of what constitutes nuisance is a question which the Court has to determine. The Court has first to ascertain what is the legal duty of which there has been breach. The right to an injunction depends on the legal right and this must be determined before any relief can be granted by the Court. (Para 15) 2022 LiveLaw (SC) 213

Words and Phrases

Meaning of expressions "officer" , "subordinate" , "any", "officer subordinate" discussed. (Para 31-33) 2022 LiveLaw (SC) 212

2022 LiveLaw (SC) February Nominal Index Part 4 [Feb 20 - 28, 2022]

1. Abinash Dixit v. State of Madhya Pradesh, 2022 LiveLaw (SC) 218
2. Adiraj Manpower Services Pvt. Ltd. v. Commissioner, 2022 LiveLaw (SC) 190
3. Apex Laboratories Pvt. Ltd. v. Deputy Commissioner, 2022 LiveLaw (SC) 195
4. Authority for Clarification & Advance Ruling v. Aakavi, 2022 LiveLaw (SC) 191
5. Azgar Barid v. Mazambi @ Pyaremabi, 2022 LiveLaw (SC) 193
6. Babuji Rawji Shah v. S. Hussain Zaidi, 2022 LiveLaw (SC) 213
7. Balakram @ Bhura v. State of Uttar Pradesh, 2022 LiveLaw (SC) 215
8. Benson George v. Reliance General Insurance, 2022 LiveLaw (SC) 214
9. Brahmaputra Biochem v. New India Assurance, 2022 LiveLaw (SC) 211
10. Dr. A. Parthasarathy v. E Springs Avenues Pvt. Ltd, 2022 LiveLaw (SC) 199
11. Gayatri Prasad Prajapati v. State of Uttar Pradesh, 2022 LiveLaw (SC) 201
12. Horticulture Experiment Station v. Regional PF, 2022 LiveLaw (SC) 202
13. K. Shanthamma v. State of Telangana, 2022 LiveLaw (SC) 192
14. Kishor Madhukar Pinglikar v. Automotive Research, 2022 LiveLaw (SC) 189
15. Krishi Upaj Mandi Samiti v. Commissioner, 2022 LiveLaw (SC) 203
16. Krishnamurthy @ Gunodu v. State of Karnataka, 2022 LiveLaw (SC) 220
17. M. Chinnamuthu v. Kamaleshan @ Shanmugam, 2022 LiveLaw (SC) 209
18. Mahindra & Mahindra Financial Services v. State of UP, 2022 LiveLaw (SC) 198
19. Mukesh Kumar v. Union of India, 2022 LiveLaw (SC) 205
20. NKGSB Cooperative Bank Ltd. v. Subir Chakravarty, 2022 LiveLaw (SC) 212
21. Punjab National Bank v. Union of India, 2022 LiveLaw (SC) 208
22. Rajesh Seth v. State of Chhattisgarh, 2022 LiveLaw (SC) 200
23. Registrar General v. State, 2022 LiveLaw (SC) 204
24. Ruchi Soya Industries Ltd. v. Union of India, 2022 LiveLaw (SC) 207
25. Sabir v Bhoora @ Nadeem, 2022 LiveLaw (SC) 210
26. Shrikant G. Mantri v. Punjab National Bank, 2022 LiveLaw (SC) 197
27. State of Odisha v. Panda Infraproject, 2022 LiveLaw (SC) 206
28. Sunil Kumar Rai v. State of Bihar, 2022 LiveLaw (SC) 219
29. Suresh Yadav @ Guddu v. State of Chhattisgarh, 2022 LiveLaw (SC) 217
30. TRL Krosaki Refractories Ltd. v. SMS Asia Pvt. Ltd., 2022 LiveLaw (SC) 196
31. Vodafone Idea Cellular Ltd. v. Ajay Kumar Agarwal, 2022 LiveLaw (SC) 221
32. Waheed-Ur-Rehman Parra v. Union Territory of J&K, 2022 LiveLaw (SC) 216
33. X (Minor) v. State of Jharkhand, 2022 LiveLaw (SC) 194