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Supreme Court Weekly Round Up- November 29 To December 5, 2021
Nupur Thapliyal
5 Dec 2021 8:08 AM GMT
JUDGMENTS THIS WEEK1. Arms Act - Illegal Use Of Licensed Weapon Per Se Not Offence Under Section 27 Unless Misdemeanour Under Sections 5/7 Proved : Supreme CourtCase Title: Surinder Singh v State (Union Territory Of Chandigarh)| Criminal Appeal No. 2373 Of 2010Citation : LL 2021 SC 687The Supreme Court has observed that illegal use of a licensed or sanctioned weapon per se does not constitute...
JUDGMENTS THIS WEEK
Case Title: Surinder Singh v State (Union Territory Of Chandigarh)| Criminal Appeal No. 2373 Of 2010
Citation : LL 2021 SC 687
The Supreme Court has observed that illegal use of a licensed or sanctioned weapon per se does not constitute an offence under Section 27 of the Arms Act, 1959 ("Act"), without proving the misdemeanour u/s 5 or 7 of the Act.
The Court also observed that at best, it could be a 'misconduct' under the service rules.
The bench of CJI NV NV Ramana, Justices Surya Kant and AS Bopanna in the present matter was considering a criminal appeal against Punjab and Haryana High Court's order dated May 19, 2010 ("impugned order").
As per the impugned order, the High Court had confirmed the order of conviction and sentence dated July 25, 2006 passed by Additional Sessions Judge, Chandigarh of the appellant who was convicted under Section 307 of the Indian Penal Code, 1860 ('IPC') and Section 27 of the Act and sentenced to rigorous imprisonment of 3 years for both the offences, with a direction that sentences will run concurrently.
Case Title: Union of India and Ors v Ram Bahadur Yadav| Civil Appeal No. 9334 Of 2010
Citation : LL 2021 SC 688
The Supreme Court has observed that when Rules contemplate method and manner to adopt special procedure, it is mandatory on the part of the authorities to exercise such power by adhering to the Rule strictly.
The bench of Justices R Subhash Reddy and Hrishikesh Roy in the present matter was considering a Civil Appeal assailing Allahabad High Court's order dated April 7, 2009 ("impugned order").
In the Impugned Order the High Court while dismissing the intra court appeal had confirmed Single Judge's order. The Single Judge by setting aside the dismissal order with a direction for payment of all pensionary benefits and 50% of back wages. of directing the Competent Authority to allow Respondent's ("Ram Bahadur Yadav") writ petition.
While dismissing the appeal, the bench in Union of India and Ors v Ram Bahadur Yadav observed that,
"Dismissal of a regular member of Force, is a drastic measure. Rule 161, which prescribes dispensing with an inquiry and to pass order against a member of Force, cannot be invoked in a routine and mechanical manner, unless there are compelling and valid reasons. The dismissal order dated 22.10.1998 does not indicate any reason for dispensing with inquiry except stating that the respondent had colluded with the other Head Constable for theft of Non Judicial Stamp Papers. By merely repeating the language of the Rule in the order of dismissal, will not make the order valid one, unless valid and sufficient reasons are recorded to dispense with the inquiry. the Rule mandates recording of reasons, the very order should disclose the reasons for dispensing with the inquiry."
3. High Court Cannot Dismiss Second Appeal In Limine Without Assigning Reasons : Supreme Court
Case Title : Hasmat Ali vs Amina Bibi and others
Citation : LL 2021 SC 689
Holding that a High Court cannot dismiss a second appeal filed under Section 100 of the Code of Civil Procedure in limine without assigning reasons, the Supreme Court remitted a matter back to the High Court for fresh consideration.
In the instant case, the High Court had dismissed the second appeal with a one sentence order stating : "Considering the submission made herein and going through the question of law, this Court does not find any question of law for admitting the Second Appeal for which the Second Appeal stands dismissed".
Taking exception to this order, the Supreme Court observed that if the case does not involve any substantial question of law, the High Court has no option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons.
Case Title : L&T Finance Ltd vs Pramod Kumar Rana and another
Citation : LL 2021 SC 690
The Supreme Court has observed that the Consumer Commission should issue a bailable warrant for the appearance of a party only as a last resort. The issuance of bailable warrant is not justified if the party is represented through counsel or authorized representative.
"Bailable warrants are to be issued as a last resort and only in a case where it is found that the opponent parties are not cooperating at all and that they are avoiding appearance before the National Commission deliberately and/or they are not represented at all either through their authorised representative or through their counsel", the Court observed.
A bench comprising Justices MR Shah and BV Nagarathna was considering an appeal filed by L&T Finance Ltd challenging the bailable by the National Consumer Disputes Redressal Commission for the personal appearance of the director of the company. The warrant was issued after the director failed to appear personally as per an earlier direction.
"In the present case, the allegations made by the original complainant recorded in the order dated 26.08.2021 are yet to be considered in detail by the National Commission after giving opportunity to both the opposite parties. The opposite parties are represented through their counsel and the authorised representatives and even the Director of the original opposite party No.1 company has always remained present in person before the National Commission through video conferencing as directed. Therefore, issuance of bailable warrants and the directions issued by the National Commission directing Shri Dinanath Mohandas Dubhashi, Director of original opposite party No.2 company to be produced, was not warranted at all at this stage", the Supreme Court observed.
5. Irregularity In Order Taking Cognizance Will Not Vitiate Criminal Proceedings : Supreme Court
Case Title : Pradeep S Wodeyar v State of Karnataka
Citation : LL 2021 SC 691
The Supreme Court has held that an irregularity in the order taking cognizance will not vitiate the proceedings in a criminal trial(case: Pradeep S Wodeyar vs State of Karnataka).
A bench comprising Justice DY Chandrachud, Justice Vikram Nath and Justice BV Nagarathna was deciding an appeal filed against a judgment of the Karnataka High Court which dismissed the appellant's petition seeking quashing of the criminal proceedings against him.
The appellant, a Managing Director of a company, was facing criminal trial for offences related to unauthorized mining under the Mines and Minerals (Development and Regulation) Act and Indian Penal Code.
The Supreme Court agreed that the Special Court does not have, in the absence of a specific provision to that effect, the power to take cognizance of an offence under the MMDR Act without the case being committed to it by the Magistrate under Section 209. Hence, the Court concluded that the order taking cognizance was irregular.
Next, the Court considered the question whether the irregularity in taking cognizance will affect the trial. For deciding that issue, the Court referred to Sections 460, 461 and 465 of the Code of Criminal Procedure. Section 460 enumerates irregularities which do not vitiate the proceedings.
Then, the Court referred to Section 465 CrPC which refers to "finding or sentence when reversible by reason of error, omission irregularity". Referring to Section 465(2), the Court held that this provision is applicable to interlocutory orders such as orders taking cognizance as well.
The Court also noted that as per Section 465 CrPC, a mere irregularity will not vitiate the proceedings unless it is shown that a failure of justice has taken place due to it. The accused has to demonstrate that prejudice has been caused to him.
Case Title : The Vice Chairman and Managing Director, City and Industrial Development Corporation Maharashtra and another vs Shishir Realty Private Ltd and others
Citation : LL 2021 SC 692
The Supreme Court has cautioned against the public authorities changing the undertakings in government contracts merely due to the change of person in power. The Court said that if previous undertakings are violated by the successor authority without any proper grounds of public interests, businessmen will be hesitant to enter into government contracts.
Such a situation will be counter-productive to the economy and the business environment, the Court warned.
A bench comprising Chief Justice of India NV Ramana, Justice Vineet Saran and Justice Surya Kant disapproved the actions of City and Industrial Development Corporation of Maharashtra ("CIDCO"), a Maharashtra government instrumentality, in altering the conditions in a lease deed with a private entity.
"...it is pertinent to remember that, by merely using grounds of public interest or loss to the treasury, the successor public authority cannot undo the work undertaken by the previous authority. Such a claim must be proven using material facts, evidence and figures. If it were otherwise, then there will remain no sanctity in the words and undertaking of the Government. Businessmen will be hesitant to enter Government contract or make any investment in furtherance of the same. Such a practice is counter¬productive to the economy and the business environment in general", the Court observed.
Case Title : In Re: T.N. Godavarman Thirumulpad vs Union of India
Citation : LL 2021 SC 693
While emphasising on the idea of collective responsibility to carry out reafforestation and ensure a sustainable future,the Supreme Court of India on Monday directed the Delhi Metro Rail Corporation and the Government of National Capital Territory of Delhi to evolve a plan of action to plant tree saplings in the city y involving school and college students, educational institutions, NGOz , etc
A bench comprising Justices L Nageswara Rao, BR Gavai and BV Nagarathna has issued the direction in an application filed by DMRC seeking exemption from forest clearance for felling of trees for the Delhi metro Phase -IV project. The Court disposed of the application by directing the DMRC to file application before the Chief Conservator of Forest seeking clearance under the Forest Conservation Act.
The GNCTD has been asked to involve school and college students, educational institutions, Non- Governmental Organizations, Citizen Welfare Associations, public servants and every citizen or person who is interested in the ecology of NCT of Delhi to plant trees or saplings and ensure that they are nurtured and protected so that the NCT of Delhi would in passage of time have more greenery leading to afforestation.
The Bench observed that in order to meaningfully arrest the problem of declining tree cover, the civil society must also be placed with the responsibility to carry out reafforestation activities.
Case Title : Bombay Hospital and Medical Research Centre versus Asha Jaiswal and others
Citation : LL 2021 SC 694
The Supreme Court has held that non-availability of an emergency operation theatre during the period when surgeries were being performed on other patients is not a valid ground to hold the hospital negligent in any manner.
A bench comprising Justices Hemant Gupta and V. Ramasubramanian observed that if a patient who was admitted in a critical condition does not survive even after surgery, the blame cannot be passed on to the Hospital or the Doctor who provided all possible treatment within their means and capacity.
"The experts in the other fields have been consulted from time to time and the treatment was modulated accordingly. In spite of the treatment, if the patient had not survived, the doctors cannot be blamed as even the doctors with the best of their abilities cannot prevent the inevitable."
The matter emanates from a 2010 order of National Consumer Disputes Redressal Commission (NCDRC) against the Bombay Hospital and Medical Research Centre and one of its doctors, wherein it had directed them to pay the deceased Rs. 14,18,491 along with interest for medical negligence and deficiency in services.
The complaints alleged that the doctor did not examine the patient after survey, delayed his DSA test, his angiography and later his treatment due to non availability of operation theatre. They further contended that the patient was left in the care of inexperienced doctors who did not properly treat the gangrene on his legs.
The Court found that negligence cannot be affixed on the doctor and hospital for delay in DSA test due to non-working of the DSA machine, which was beyond human control. It observed that the doctors were on their feet, which is evident from the fact that soon they adopted the alternative process to determine blood flow by means of angiography.
Case Title: Vinod Kumar V. Amritpal @ Chhotu & Ors.| Criminal Appeal No. 1519 Of 2021
Citation : LL 2021 SC 695
The Supreme Court has observed that once the prosecution establishes the existence of three ingredients forming part of "thirdly" in Section 300 of the Indian Penal Code, it is irrelevant whether there was an intention on the accused part to cause death.
The bench of Justices Ajay Rastogi and AS Oka was considering a criminal appeal against an order dated July 18, 2016 passed by the Rajasthan High Court ("impugned order").
By the impugned order, the High Court while maintaining the conviction u/s 147, 364, 201 and 329/149 of IPC, had brought down the conviction u/s 302, IPC to Part II of Section 304 and sentenced them to undergo rigorous imprisonment for 8 years. The fine amount was not disturbed.
The 5 respondents were the accused(s) who were prosecuted u/s 147, 364, 302/149, 201 and 323/149 of the Indian Penal Code.
While allowing the appeal, setting aside the High Court's order and restoring the order passed by the Session's Court, the bench observed that,
"We are constrained to observe that the High Court adopted an easy method of accepting the only contention canvassed that the offence made out was culpable homicide not amounting to murder. As noticed earlier, the High Court ignored that there were injuries on the vital parts of the body of the deceased. The High Court did not notice that all the elements of "thirdly" in Section 300 were established."
Case name: Phool Singh vs State of Madhya Pradesh
Citation: LL 2021 SC 696
The Supreme Court reiterated that a rape accused can be convicted on sole testimony of prosecuterix if she is found to be credible and trustworthy.
In this case, one of the contentions raised by the rape accused who was concurrently convicted under Section 375 of the Indian Penal Code was that the prosecution case rests solely on the deposition of the prosecutrix only and that no other independent witnesses have been examined and/or supported the case of the prosecutrix.
While examining this contention, the bench comprising Justices MR Shah and Sanjiv Khanna noted that the prosecutrix has fully supported the case of the prosecution and has been consistent right from the very beginning.
Case name: Ashim @ Asim Kumar Haranath Bhattacharya @ Asim Harinath Bhattacharya @ Aseem Kumar Bhattacharya vs National Investigation Agency
Citation: LL 2021 SC 697
The Supreme Court observed that period of deprivation of personal liberty pending trial/appeal cannot be unduly long.
Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail, the bench comprising Justices Ajay Rastogi and Abhay S. Oka observed.
The court was considering a case of an under trial accused under Sections 120B, 121, 121A, 122 IPC, Section 25(1A) of the Arms Act 1959, Section 5 of the Explosive Substances Act, 1908 and Sections 18,20,40(1)(b)(c) of the Unlawful Activities(Prevention) Act, 1967. It noted that the accused, who is presently 74 year old is in custody since 6th July, 2012 and has completed nine and half years of incarceration as an undertrial prisoner.
The court observed that the charges against the accused are serious but the charges will have to be balanced with certain other factors like the period of incarceration which he has undergone and the likelihood period within which the trial can be expected to be finally concluded.
12. Resolution Process Has To Be Completed Within The Period Stipulated U/Sec 12 IBC: Supreme Court
Case name: Committee of Creditors of Amtek Auto Limited through Corporation Bank vs Dinkar T. Venkatsubramanian
Citation: LL 2021 SC 698
The Supreme Court observed that the entire resolution process has to be completed within the period stipulated under Section 12 of the Insolvency and Bankruptcy Code.
Any deviation would defeat the object and purpose of providing such time limit, the bench comprising Justice MR Shah and Sanjiv Khanna observed.
The court was considering an appeal filed by the Committee of Creditors in the matter of corporate insolvency resolution process initiated against Amtek Auto Limited. While disposing the appeal filed against NCLAT order, taking note of the fact that, the process was initiated on 24.07.2017, the bench observed thus:
The approved resolution plan has to be implemented at the earliest and that is the mandate under the IBC. As per Section 12 of the IBC, subject to sub-section (2), the corporate insolvency resolution process shall be completed within a period of 180 days from the date of admission of the application to initiate such process, which can be extended by a further period of 180 days. As per proviso to Section 12 of the IBC, which has been inserted by Act 26 of 2019, the insolvency resolution process shall mandatorily be completed within a period of 330 days from the insolvency commencement date, including any extension of the period of corporate insolvency resolution process granted under Section 12 of the IBC and the time taken in legal proceedings in relation 12 to such resolution process of the Corporate Debtor. As per the third proviso to Section 12 of the IBC, which is also inserted by Act 26 of 2019, where the insolvency resolution process of a Corporate Debtor is pending and has not been completed within a period stated hereinabove, i.e., within a period of 330 days, such resolution process shall be completed within a period of 90 days from the date of commencement of the IBC amendment Act, 2019, i.e., 16.08.2019. Thus, the entire resolution process has to be completed within the period stipulated under Section 12 of the IBC and any deviation would defeat the object and purpose of providing such time limit.
13. Registration Of CNG Vehicles Can't Be Rejected As Emission Is Within Limits: Supreme Court
Case Title: MC Mehta vs Union of India
Citation : LL 2021 SC 699
The Supreme Court of India has reiterated that the registration of CNG vehicles cannot be rejected as the emission from such vehicles is within the limits.
A three-judge Bench of Justice Nageswara Rao, Justice BR Gavai and Justice BV Nagarathna was hearing a batch of applications filed in the case of MC Mehta vs Union of India, seeking the registration of including CNG vehicles, some BS-IV and BS-VI compliant vehicles etc.
The applications filed for registration of CNG vehicles were for those vehicles which are not being registered by the transport authorities as an interpretation of the Supreme Court's orders.
The Bench stated that its order dated 18.09.2020 makes it clear that in so far as CNG vehicles are concerned, registration cannot be rejected as the emission from such vehicles is within the limits.
Observing the same, the Bench directed the concerned transport authorities to register the CNG vehicles.
"The order dated 18.09.2020 passed by this Court makes it clear that in so far as CNG vehicles are concerned, registration cannot be rejected as the emission from such vehicles is within the limits. In spite of the Order dated 18.09.2020, in which the direction was given in clear terms, the transport authorities have unnecessarily driven these applicants to approach this Court. The concerned transport authorities are directed to register the CNG vehicles".
14. Father Responsible To Maintain Child Till Adulthood : Supreme Court
Case name: Neha Tyagi vs Lt. Col Deepak Tyagi
Citation: LL 2021 SC 700
The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority, the Supreme Court observed in a judgment dissolving marriage of a couple.
"It also cannot be disputed that the son has a right to be maintained as per the status of his father", the Court added.
Further, the court said that a child should not be made to suffer due to disputes between his parents.
In this case, the wife had approached the Apex Court against the High Court judgment that dismissed her appeal against the judgment of Family Court dissolving the marriage on the ground of cruelty and desertion. She requested the court to expunge the findings against her on "cruelty". Taking note of the factual aspects, the bench comprising Justices MR Shah and AS Bopanna observed thus:
However, considering the fact that both, the appellant-wife and the respondent-husband are not staying together since May, 2011 and therefore it can be said that there is irretrievable breakdown of marriage between them. It is also reported that the respondent-husband has already re-married. Therefore, no useful purpose shall be served to further enter into the merits of the findings recorded by the courts below on "cruelty" and "desertion" by the appellant-wife. Therefore, in the facts and circumstances of the case and in exercise of powers under Article 142 of the Constitution of India, the decree passed by the learned Family Court, confirmed by the High Court, dissolving the marriage between the appellant-wife and the respondent-husband is not required to be interfered with on account of irretrievable breakdown of marriage.
15. Pension Shall Be Determined On Rules Existing At The Time Of Retirement: Supreme Court
Case Title: Dr. G. Sadasivan Nair V. Cochin University Of Science And Technology Represented By Its Registrar, & Ors.| Civil Appeal No.6994/2021
Citation : LL 2021 SC 701
The Supreme Court has observed that the pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement. The Court also observed that the law did not allow the employer to apply the rules differently in relation to persons who are similarly situated.
The bench of Justices MR Shah and BV Nagarathna in the present matter was considering a civil appeal against an order dated August 29, 2019 passed by the Division Bench of the Kerala High Court wherein the High Court had dismissed an appeal.
While allowing the appeal the bench in Dr. G. Sadasivan Nair V. Cochin University Of Science And Technology Represented By Its Registrar, & Ors observed that,
"While we accept the settled position of law that the rule applicable in matters of determination of pension is that which exists at the time of retirement, we are unable to find any legal basis in the action of the respondent University of selectively allowing the benefit of Rule 25 (a). The law, as recognized by this Court in Deoki Nandan Prasad and Syed Yousuddin Ahmed (supra) unequivocally states that the pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement. However, the law does not allow the employer to apply the rules differently in relation to persons who are similarly situated."
Case Title : Taijuddin versus State of Assam
Citation : LL 2021 SC 702
Setting aside the conviction of a person in a murder case, the Supreme Court recently held that merely because a person revealed the hideout of the victim to the murderous mob, he cannot be presumed to share the common object of the unlawful assembly.
A bench comprising Justices Sanjay Kishan Kaul and MM Sundresh struck a word of caution by observing that the Courts must guard against the tendency of convicting mere passive onlookers of the crime using the medium of Section 149 of the Indian Penal Code for sharing the common object of the unlawful assembly.
In this case(Taijuddin versus State of Assam), the appellant was one among the 32 persons who were sentenced to life imprisonment for the offences under Sections 147/148/324/302/201 read with Section 149 of the IPC for the murder of one person.
The role attributed to the appellant was that he informed the murderous gang about the location of the victim. The trial court sentenced him for murder, holding that he shared the common objective of the unlawful assembly, and this was upheld by the division bench of the Gauhati High Court as well.
Case Title: Ashok v State of Madhya Pradesh| Special Leave to Appeal (Crl.) No(s). 643/2020
Citation : LL 2021 SC 703
The Supreme Court has observed that the claim of juvenility can be raised before any Court, at any stage, even after final disposal of the case.
The bench of Justices Indira Banerjee and JK Mahseshwari observed that if the Court finds a person to be a juvenile on the date of commission of the offence, it is to forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a Court, shall be deemed to have no effect.
"Even though the offence in this case may have been committed before the enactment of the Act of 2000, the petitioner is entitled to the benefit of juvenility under Section 7A of the Act of 2000, if on inquiry it is found that he was less than 18 years of age on the date of the alleged offence," Court further added.
Case Title: Jeeja Ghosh vs Union of India| WP(c) 98/2012
Citation : LL 2021 SC 704
In a petition filed to ensure convenient air travel for persons with disabilities, the Supreme Court of India on Wednesday observed that differently abled persons with prosthetic limbs/calipers should not be asked to remove the prosthetics at airport security checks so as to maintain human dignity.
The Court also observed that lifting a person with disability during air travel or security checkup is inhumane, and held that the same should not be done without the person's consent.
A Bench comprising Justice Hemant Gupta and Justice V Ramasubramanian was hearing a 2012 petition filed by Jeeja Ghosh, a disability rights activist, who was forcibly de-boarded from a Spicejet flight due to her disability. In 2016, the Supreme Court had directed Spicejet to pay Rs 10 lakhs as compensation to Ghosh for violating her right to dignity. The Court had issued further directions to the Directorate General of Civil Aviation(DGCA) to modify its guidelines to ensure the dignity of persons with disability during air travel.
19. Right Against Sexual Harassment Part Of Right To Life & Dignity Under Article 21 : Supreme Court
Case Title: Union of India and Ors v. Mudrika Singh
Citation : LL 2021 SC 705
The Supreme Court on Friday observed that the right against sexual harassment is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution. The Court stressed that it is important that that the spirit of this right is upheld instead of rejecting sexual harassment complaints on "hyper-technical" grounds.
The Court highlighted that the Sexual Harassment of Women at Workplace(Prevention, Prohibition, and Redressal) Act, 2013 which is a transformative legislation will fail to come to the aid of aggrieved persons if proceedings inquiring into sexual misconduct are invalidated on 'hyper-technical' interpretations of the applicable service rules.
"It is important that courts uphold the spirit of the right against sexual harassment, which is vested in all persons as a part of their right to life and right to dignity under Article 21 of the Constitution".
A Bench comprising Justices D.Y Chandrachud and A.S Bopanna further cautioned against the 'rising trend' of appellate mechanisms relating to inquiry into sexual harassment turning into a 'punishment' of sorts for aggrieved persons.
Case name: Sunil Todi vs State of Gujarat
Citation: LL 2021 SC 706
The Supreme Court observed that Section 138 of Negotiable Instruments Act is attracted in cases where debt is incurred after the drawing of the cheque but before its encashment.
The true purpose of Section 138 would not be fulfilled, if 'debt or other liability' is interpreted to include only a debt that exists as on the date of drawing of the cheque, the bench comprising Justices DY Chandrachud and AS Bopanna observed.
The court added that merely labelling the cheque as a security would not obviate its character as an instrument designed to meet a legally enforceable debt or liability.
One of the issues considered in this appeal was whether the dishonor of a cheque furnished as a 'security' is covered under the provisions of Section 138 of the NI Act?
The court noticed that a later judgments in Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Limited (2016) 10 SCC 458 and Sripati Singh v. State of Jharkhand LL 2021 SC 606 has distinguished the judgment in Indus Airways. In Sampelly and Sripati Singh, post-dated cheques were issued as a security for loan installments that were due. On the dates on which the cheques were drawn, there was an outstanding debt, the court noted.
Case Title: Krishnan & Anr vs State By Deputy Superintendent Of Police & Anr
Citation : LL 2021 SC 707
The Supreme Court of India has held that ex parte enhancement of sentence by the High Court is against the statutory mandate of the law under CrPC that provides for an opportunity to show case before enhancement of sentence in criminal revision.
A Bench compromising Justice Sanjiv Khanna and Justice Bela Trivedi set aside Madras High Court's order that enhanced the sentences imposed on the appellants without any legal representation on his behalf and without appointing an Amicus Curiae in the case
"It appears the ex parte enhancement of sentence is against the statutory mandate of the law as delineated in the conjoint reading of Section 401(1) and first proviso to Section 386 of the Code of Criminal Procedure, 1973. These sections adumbrate an opportunity of showing cause before enhancement of sentence in criminal revision", the Bench said.
It may be noted that Section 401 of CrPC which provides for High Court's power of revision states that no order under the section can be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
22. ITAT Cannot Recall Its Order By Invoking Power U/Sec 254(2) Income Tax Act : Supreme Court
Case name: Commissioner of Income Tax (IT-4), Mumbai vs Reliance Telecom Limited
Citation: LL 2021 SC 708
The Supreme Court observed that the Income Tax Appellate Tribunal cannot recall orders passed by it invoking power under Section 254(2) of the Income Tax Act.
Section 254(2) power is only to correct and/or rectify the mistake apparent from the record and not beyond that, the bench comprising Justices MR Shah and BV Nagarathna said.
In this case, the ITAT allowed the Revenue's appeal and held that payments made for purchase of software are in the nature of royalty. The Assessee filed miscellaneous application for rectification under Section 254(2) of the Act. This miscellaneous application was allowed by ITAT by recalling its original order. This recall order was unsuccessfully challenged before the Bombay High Court
The bench noted that while allowing the application under Section 254(2) of the Act and recalling its earlier order, the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. I
[Case Title: M/s. Sai Baba Sales Pvt. Ltd. v. Union of India And Ors. Civil Appeal No. 595 of 2021]
Citation : LL 2021 SC 709
In a recent judgment, the Supreme Court validated the pre-existing construction made by a Project Proponent, based on the Environmental Clearance (EC) obtained as per the legal framework that existed at the relevant time, invoking the principle of legitimate expectation. However, the Apex court directed further construction to be carried out only after obtaining fresh EC under the existing environmental regime.
A Bench comprising Justices R. Subhash Reddy and Hrishikesh Roy endorsed the order of the National Green Tribunal to the extent that the Appellant's EC though invalidated beyond a certain period, its pre-existing constructions made on the said EC were protected.
The Appellant initially came up with a project of 15,040 sq. m., which was below the Environment Clearance threshold limit of 20,000 sq. m. It approached the Pimpri Chinchwad Municipal Corporation (PCMC) with the layout to eventually obtain the Environment Clearance from SEIAA. The requisite permissions were granted for 15.040 sq. m. Being below the threshold limit, EC was not required for the construction, at this stage.
Case Title: Arce Polymers Private Limited v. M/s. Alpine Pharmaceuticals Private Limited and Others Civil Appeal No. 7372 of 2021
Citation : LL 2021 SC 710
The Supreme Court held that failure to furnish reply by the creditor as per the mandate of Section 13(3A) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) would not entitle the debtor of discretionary relief, if the Court is satisfied that the creditor has considered the debtor's representation and granted it sufficient opportunity to repay the debt. The Apex Court added that a borrower not questioning and objecting to the action of the creditor and accepting the favourable decisions from the creditor, would be later estopped from take inconsistent positions to gain advantage through the aid of judicial proceedings.
A Bench comprising Justices L. Nageshwara Rao, Sanjiv Khanna and B.R. Gavai allowed a Special Leave Petition, assailing the order of Telangana High Court, setting aside and quashing the proceedings initiated by Andhra Bank for sale of concerned mortgaged asset, holding it to be in derogation of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and the Security Interest (Enforcement) Rules, 2002 (Rules).
IMPORTANT APEX COURT UPDATES
1. COVID Orphans : Supreme Court Directs District Magistrates To Personally Interact With Children To Review Health & Education
The Supreme Court in the suo moto matter pertaining to the children in need of care and protection, who have lost their parents during the COVID-19 pandemic, directed that the District Magistrates should expeditiously complete the review process for identification of children entitled to benefits.
A bench comprising Justice L Nageswara Rao and BR Gavai ordered :
"The District Magistrate is required to interact with children personally and review health and education parameters. The DM has to ensure benefits reach the children. We are informed by Ms Bhati, ASG that a timeline of one months has been fixed in the scheme from registration to approval to come from Union of India This timeline is not being followed by DMs. Any delay caused in identification by Union of India for grant of benefits under PM Cares Fund would be to the detriment of the children who need assistance.
2. Centre May Consider To Create All India Tribunal Services For Allocation Of Persons To Different Tribunals: Supreme Court
The Supreme Court orally put to the Union of India that, so far as administrative work in tribunals are concerned, it may consider creating an All-India Tribunals Service on the lines of UK's Her Majesty's Tribunals Service, by way of an umbrella service for allocation of persons to different tribunals like the NCDRC, the NCLT, the DRT and those under other central legislations.
The bench of Justices D. Y. Chandrachud, Surya Kant and Vikram Nath was hearing the Imtiyaz Ahmad v. State of UP matter, and deliberating on the issue of judicial infrastructure and judge strength primarily at the state and district level across the country.
3. Gujarat Riots- 'If This Court Allows Any Further Investigation, It Would Be In The Teeth Of The Constitutional Rights Of Accused': Rohatgi Concludes His Arguments
Senior Advocate, Mr. Mukul Rohatgi appearing on behalf of SIT apart from refuting the allegation of the Petitioner that the SIT had given clean chit to the highest functionaries of the State without conducting due investigation, went a step further, to fervently controvert the plea that the Magistrate and the High Court did not delve into the crucial material before them. In the latter half of the proceedings, he was joined in by the Solicitor General appearing for the State of Gujarat.
A Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, took up the part heard matter for further hearing.
On the earlier occasions, Mr. Rohtagi had taken the Court through the findings of the SIT, observation made by the Nanavati Commission, the Trial Court judgment in the Gulberg matter qua the allegations made by the Petitioner.
4. Delhi Pollution : Supreme Court Directs Centre & Delhi Govt To Implement Directions Of Air Quality Management Commission
The Supreme Court took note of the decisions taken by the Commission for Air Quality Management in National Capital Region and directed the Central Government and the Delhi Government to implement the same in order to tackle the air pollution in the national capital.
The Commission took several decisions, following the strong critical remarks by the Supreme Court regarding the non-implementation of the directions issued to control air pollution. Solicitor General of India Tushar Mehta took the Court through the decisions taken by the Commission ,which include the constitution of an "Emergency Task Force" and "Flying Squads" to take action against defaulting entities. The Commission also decided to restrict the functioning of those industries, which are not using PNG or cleaner fuels, by 8 hours on weekends and to close them on weekends.
5. NIA Moves Supreme Court Against Bombay High Court's Order Granting Bail To Sudha Bharadwaj In Bhima Koregaon Case
The National Investigative Agency (NIA) has moved Supreme Court challenging the Bombay High Court's December 1 order granting bail to lawyer-activist Sudha Bharadwaj in the Bhima Koregaon case.
The Bombay High Court had, on Wednesday granted default bail to lawyer-activist Sudha Bharadwaj in the 2018 Bhima Koregaon – Elgar Parishad caste violence case.
The Court had also directed Sudha Bharadwaj to be produced before the Special NIA Court on December 8 to decide the conditions of bail.
However, the Court had rejected the bail applications of the 8 other accused Sudhir Dawale, Dr P Varavara Rao, Rona Wilson, Advocate Surendra Gadling, Professor Shoma Sen, Mahesh Raut, Vernon Gonsalves and Arun Ferreira. They were arrested between June – August 2018.
