The Supreme Court fortnightly: 15 important judgments from March 15 to 31, 2023

In this fortnightly series, we capture 15 important judgments delivered by the Supreme Court of India in the past two weeks.
Top 15 Judgments
Top 15 Judgments

In this series, Bar & Bench will bring you the top 15 judgments/orders delivered by the Supreme Court of India every two weeks.

Below are our picks for the last two weeks of March 2023.

1. Section 37 NDPS Act should not be interpreted literally to render bail impossible: Supreme Court

Case Title: Mohd Muslim @ Hussain v. State (NCT of Delhi)

A Division Bench of Justices S Ravindra Bhat and Dipankar Dutta held that undue delay in trial can be a ground for grant of bail to an accused charged under the Narcotics Drugs and Psychotropic Substances Act 1985 (NDPS Act), despite the stringent conditions provided under Section 37.

The Court said that laws which impose stringent conditions for grant of bail may be necessary in public interest; yet, if trials are not concluded in time, the injustice wreaked on the individual is immeasurable.

"Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified period) which is applicable to offences under the NDPS Act too," the Court held.

Importantly, the Court said that a plain and literal interpretation of the conditions under Section 37 - that the Court should be satisfied that the accused is not guilty and would not commit any offence - would effectively make grant of bail impossible.

Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record that the accused is not guilty, the Court underscored.

"Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act," the order said.

2. Cheque bouncing cases not akin to civil proceedings; IBC process does not extinguish criminal case: Supreme Court

Case Title: Ajay Kumar Radheshyam Goenka v. Tourism Finance Corporation of India Limited

A three-judge Bench of Justices Sanjay Kishan Kaul, Abhay S Oka and JB Pardiwala held that the initiation of the insolvency process to recover a debt would not absolve accused from criminal liability in cheque dishonour cases.

The Court made it clear that proceedings under Section 138 of the Negotiable Instruments (NI) Act are not recovery or suit proceedings, but penal in character.

"We are unable to accept the plea that Section 138 of the N.I. Act proceedings are primarily compensatory in nature and that the punitive element is incorporated only at enforcing the compensatory proceedings. The criminal liability and the fines are built on the principle of not honouring a negotiable instrument, which affects trade. This is apart from the principle of financial liability per se. To say that under a scheme which may be approved, a part amount will be recovered or if there is no scheme a person may stand in a queue to recover debt would absolve the consequences under Section 138 of the N.I. Act, is unacceptable," the majority opinion signed by Justices Kaul and Oka stated.

The Bench said it could not accept the contention that if proceedings against the company under the Insolvency and Bankruptcy Code (IBC) come to an end, then a managing director cannot be proceeded against in the criminal case.

"It cannot be said that the process under the IBC whether under Section 31 or Sections 38 to 41 which can extinguish the debt would ipso facto apply to the extinguishment of the criminal proceedings."

The Court at the outset noted that scope of proceedings under the two Acts were quite different and do not intercede each other.

3. Imposing inadequate sentence due to sympathy will undermine public confidence in legal system: Supreme Court

Case Title: State of Punjab v. Dil Bahadur

A Division Bench of Justices MR Shah and CT Ravikumar held that the quantum of punishment in a given case must depend upon the seriousness of the crime, and therefore, it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was committed.

The Court said that imposing inadequate sentence due to undue sympathy would do more harm to the justice system and undermine the public confidence in the efficacy of law.

"We again reiterate in this case that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed," the Court said.

Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime, the bench ruled.

4. Consumer forum not empowered to decide cases involving tortious acts or criminality: Supreme Court

Case Title: CMD City Union Bank Limited and Another v. R Chandramohan

A Division Bench of Justices Ajay Rastogi and Bela M Trivedi reaffirmed that consumer fora are not entitled to decide complaints involving highly disputed questions of facts or cases involving tortious acts or criminality like fraud or cheating.

The Court held that proceedings before consumer fora are summary in nature and they can only decide on 'deficiency in service'.

Further, under the Consumer Protection Act, the onus to prove deficiency of service is on the complainant and there cannot be any presumption on part of the fora towards existence of such deficiencies, the Court underlined.

5. Supreme Court acquits four in 1989 murder case; says case might have been set up by police to cover up their own crime

Case Title: Pulen Phukan and Others v. State of Assam

A three-Judge Bench of Justices BR Gavai, Vikram Nath and Sanjay Karol acquitted four men convicted in a 1989 murder case, after finding that the evidence against them was unreliable and the entire prosecution case could have been fabricated by the police.

The Court even said that the police might have accidentally killed the deceased while trying to arrest him and in order to cover up the same, fabricated the case against the accused after coming to know about the prior enmity between the deceased and the accused.

Therefore, the Court was of the view that although the death of deceased was homicidal; however, the prosecution failed to establish the case beyond reasonable doubt against the accused appellants.

6. Lack of criminal antecedents of convict not sole criterion to decide whether case is 'rarest of rare': Supreme Court

Case Title: Shiva Kumar @ Shiva @ Shivamurthy v. State of Karnataka

A Division Bench of Justices Abhay S Oka and Rajesh Bindal held that lack of criminal antecedents of a convict is not the sole criterion to decide whether the case falls under the rarest of rare category.

The Court said that in cases involving death sentence, several other factors have to be considered and showing undue leniency in brutal offences will negatively impact the confidence of public in the legal system.

Pertinently, the Court held that Constitutional courts can modify sentence of life imprisonment to mandate a minimum term like 20 years or 30 years, even in cases where the trial court has not prescribed death penalty.

“When a Constitutional Court finds that though a case is not falling in the category of ‘rarest of the rare’ case, considering the gravity and nature of the offence and all other relevant factors, it can always impose a fixed­-term sentence so that the benefit of statutory remission, etc. is not available to the accused,” the Court said.

7. 28 years after murder, Supreme Court orders release of death row convict after finding he was a child at the time of crime

Case Title: Narayan Chetanram Chaudhary v. State of Maharashtra

A three-judge Bench of Justices Aniruddha Bose, KM Joseph and Hrishikesh Roy ordered the immediate release of death row convict Narayan Chetanram Chaudhary after finding that he was only 12 years old at the time of commission of the offence.

The Court ordered his release after concluding that his claim of juvenility was true.

The appellant had spent 28 years in prison, 25 of those as a death row convict for the 1994 Rathi family murders in Pune in which two children and a pregnant woman were murdered.

During his trial as well as appeals against his conviction, courts including the Supreme Court had recorded his age as being between 20 to 22 years.

After his death sentence was confirmed, Chaudhary and one of his two accomplices, Jeetendra Nainsingh Gehlot, submitted mercy petitions to the President. In October 2016, Gehlot's death penalty was reduced to life imprisonment, while Chaudhary withdrew his mercy plea and instead filed a review petition, claiming to have been a minor at the time of the crime.

8. Borrower should be heard before classifying account as fraudulent; reasoned order should be given: Supreme Court

Case Title: State Bank of India and Others v. Rajesh Agarwal and Others

A Division Bench of Chief Justice of India (CJI) DY Chandrachud and Justice Hima Kohli held that a decision by a bank classifying a borrower's account as fraudulent must be a reasoned order and such an order should be passed only after giving the borrower an opportunity of hearing.

The Court said that debarring borrowers from accessing institutional finances causes severe impact on them and is akin to blacklisting, which impacts credit score.

The Bench, however, said that no opportunity of being heard was required before registration of a First Information Report (FIR). An order of the Gujarat High Court which took a different view was set aside.

9. Only officer of Inspector rank or above can conduct search, seizure of illegal gas cylinders: Supreme Court

Case Title: Avtar Singh and Another v. State of Punjab

A Division Bench of Justices Abhay S Oka and Rajesh Bindal held that under the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order of 1988, only an officer of the rank of inspector or above can carry out exercises like search or seizure with regard to alleged illegal possession of gas cylinders.

The Court, therefore, acquitted two persons accused of hoarding gas cylinders.

The Court said that it was a sub-inspector who had led the operation in the present case to nab the accused while they were allegedly selling cylinders in black. It noted that as per clause 7 of the Order, a sub-­inspector of the police cannot take action.

10. Affinity test not a conclusive test to decide caste validity claim: Supreme Court

Case Title: Mah Adiwasi Thakur Jamat Swarakshan Samiti v. State of Maharashtra and Others

A three-judge Bench of Justices Sanjay Kishan Kaul, Abhay S Oka and Manoj Misra held that the affinity test is not a conclusive test to decide a caste claim and is not an essential part of the verification process of the caste/tribe claims.

The Court said that person who has stayed in an urban area might not be aware of the customs and rituals, which are factors used in the affinity test.

Hence, the result of such a test will have to be factored in along with all other material on record to decide on the validity of caste/tribe claims, the Court said.

"Affinity test is not a litmus test to decide a caste claim and is not an essential part in the process of the determination of correctness of a caste or tribe claim in every case," the Bench explained.

11. Mere membership of unlawful association sufficient to constitute an offence under UAPA: Supreme Court upholds Section 10(a)(i)

Case Title: Arup Bhuyan v. State of Assam Home Department and Another

A three-Judge Bench of Justices MR Shah, CT Ravikumar and Sanjay Karol held that holding membership of an association declared unlawful by the Central government is sufficient to constitute an offence under the Unlawful Activities Prevention Act (UAPA).

In doing so, the Court upheld the validity of Section 10(a)(i) of the UAPA, which was earlier read down by a division bench of the Court in 2011.

"Aim of UAPA is to prevent certain unlawful activities and prevent the the cost of repetition, UAPA is to punish the person a member of an unlawful organisation in furtherance of the provisions of the UAPA...Thus Section 10(a)(i) is absolutely in consonance with Articles 19(1)(a) and 19(2) of the Constitution and thus in consonance with the objectives of the UAPA," the Bench held.

Another question before the Court was whether provisions of a Central legislation could be read down in a case where the same was not assailed, and without having heard the Central government. On this aspect, the Court held,

"Enormous harm would be caused to State if they are not heard...and Centre should have made submissions to justify 10(1)(i) and what were the objects and view of the above, Section 10(a)(i) should not have read down by this Court, especially when the constitutional validity of the Section was not in question."

Pertinently, the Bench also took note of the reliance placed on United States court judgments by the apex court in its 2011 judgments that read down the provision. It held,

"In the aforesaid two decisions without noticing the differences of the US Supreme Court (referred to in the said decisions) this Court has just followed the American decisions to which we are not agreeable. This Court ought to have considered the differences in the American laws and the Indian laws more particularly the provisions in the Indian Constitution. By the aforesaid we do not say for a moment that in a given case the US Supreme Court decisions may not be taken into consideration and/or may not be a guidance. Before following the American decisions, the Indian Courts are required to consider the difference in the nature of the laws applicable in the respective countries."

12. Supreme Court overrules 2015 judgment which held High Courts cannot entertain Article 226 petitions against Armed Forces Tribunal orders

Case Title: Union of India v. Parashotam Dass

A three-judge Bench of Justices Sanjay Kishan Kaul, Abhay S Oka and BV Nagarathna overruled its 2015 decision in Union of India v. Major General Shri Kant Sharma which had held that High Courts do not have the power to entertain petitions under Article 226 challenging orders of the Armed Forces Tribunal (AFT) under writ jurisdiction.

The Court said that the decision was in conflict with earlier Constitution Bench judgments and also said that preventing High Courts from correcting possible errors by the AFT would be against the constitutional scheme.

It further said that judicial scrutiny by a High Court under Article 226 should not be considered an appeal. A High Court judge has immense experience and is quite conscious of the scope and nature of their jurisdiction, the judgment added.

13. Death penalty only if no chance of reformation, says Supreme Court; issues notice to police officer for concealing Sundarrajan's conduct

Case Title: Sundar @ Sundarrajan v. State Rep by Inspector of Police

A three-judge Bench of Chief Justice of India DY Chandrachud and Justices Hima Kohli and PS Narasimha held that the death penalty should be handed to a convict only if there is no possibility of his or her reformation.

The Court also stressed on the importance of taking into account the mitigating circumstances while determining whether or not there is possibility of reformation of a convict. Mitigating factors are those that may lessen the severity or culpability of a criminal act, like the background of the accused, his criminal history and conduct in jail during the period of custody/incarceration.

The observations were made while commuting the death sentence awarded to one Sundarrajan, who was found guilty of kidnapping and murdering a 7-year-old boy in 2009.

In its judgment, the Bench took into account the fact that the convict was poor, had no prior criminal record, was suffering from hypertension and had also secured a diploma in food catering while in prison. Further, the top court also noted that courts below did not look into the data on the mitigating circumstances relating to Sundarrajan.

"Even though the crime committed by the petitioner is unquestionably grave and unpardonable, it is not appropriate to affirm the death sentence that was awarded to him. The ‘rarest of rare’ doctrine requires that the death sentence not be imposed only by taking into account the grave nature of crime but only if there is no possibility of reformation in a criminal," the Court underscored.

14. Supreme Court upholds abolition of Orissa Administrative Tribunal by Central government

Case Title: Orissa Administrative Tribunal Bar Association v. Union of India

A Division Bench of Chief Justice of India (CJI) DY Chandrachud and Justice Hima Kohli upheld the abolition of the Orissa Administrative Tribunal (OAT) by the Central government, stating that the same was not violative of Article 14 of the Constitution.

The Court said that that Article 323A of the Constitution does not preclude the Central government from abolishing state administrative tribunals.

It added that people or their representatives need not be heard while taking a policy decision such as this one. Further, it noted that not all judicial fora may be immediately accessible in terms of distance for litigants.

"The fundamental right of access to justice is no doubt a crucial and indispensable right under the Constitution of India. However, it cannot be interpreted to mean that every village, town, or city must house every forum of adjudication created by statute or the Constitution. It is an undeniable fact that some courts and forums will be located in some towns and cities and not others. Some or the other litigants will be required to travel some distance to access a particular forum or court."

15. Man convicted by trial court for taking ₹300 bribe acquitted by Supreme Court after 18 years

Case Title: Jagtar Singh v. State of Punjab

A Division Bench of Justices Abhay S Oka and Rajesh Bindal acquitted a man who was held guilty for accepting a bribe of ₹300, 18 years after he was convicted by the trial court in 2005.

The Court said there was no proof of demand for illegal gratification, which is a necessary component along with acceptance of the same for conviction under the Prevention of Corruption Act.

"The High Court has passed its judgment on the assumption that the money having been recovered from the appellant, there was demand of illegal gratification. This is not a case where there was circumstantial evidence to prove the demand," the Bench observed.

Other important orders/observations

1. Set up comprehensive E-Seva Kendras at DRTs: Supreme Court directs Central government in plea challenging mandatory e-filing

Case Title: Madhya Pradesh High Court Bar Association v. Union of India and Others

A Division Bench of Chief Justice of India (CJI) DY Chandrachud and Justices PS Narasimha and JB Pardiwala issued guidelines to facilitate e-filing at Debts Recovery Tribunals (DRTs) across the country.

The Court made it clear that e-filing provides for transparency and convenience in the administration of justice.

2. Provision on automatic disqualification of lawmakers is drastic, courts need to be careful while sentencing: Supreme Court

Case Title: Union Territory of Lakshadweep v. Mohammed Faizal and Others and Mohammed Faizal and Others v. Secretary General]

A Division Bench of Justices KM Joseph and BV Nagarathna orally remarked that automatic disqualification of parliamentarians upon conviction is a drastic measure and, therefore, courts need to be careful when it comes to sentencing lawmakers.

The Court made the observation after it was told that Section 8(3) of the Representation of the People Act leads to automatic disqualification of a parliamentarians soon after they are convicted for imprisonment of two years or more.

"But this section is very drastic.. that is why you have to be careful thinking about sentence," Justice Joseph remarked.

3. Supreme Court directs High Courts to ensure bail orders mention FIR number, date, details of offences, police station

Case Title: Ravish Kumar vs State of Bihar

A Division Bench of Justices S Ravindra Bhat and Dipankar Datta directed all High Courts to ensure that bail orders reflect details of the first information reports (FIRs) like the FIR number, offences allegedly committed, police station in which case is registered, and dates involved.

The Court passed the direction in light of the fact that the format of orders passed by various High Courts differ significantly.

"This Court is of the opinion that in bail/anticipatory bail matters, High Courts should endeavour to ensure that all basic essentials (i.e. FIR No., date, the concerned police station and the offences allegedly committed etc.) are duly recorded or reflected in the format of the order."

The Court ordered that the said direction be circulated to all High Courts through their registrars.

4. Supreme Court lays down deadlines for payment of arrears under OROP scheme

Case Title: IESM v. Union of India and Others

A three-judge Bench of Chief Justice of India DY Chandrachud and Justice PS Narasimha and JB Pardiwala laid down the deadlines for the Ministry of Defence to make payment of arrears under the One Rank One Pension scheme (OROP scheme) to retired military personnel/ amily pensioners.

The Court issued the following directions in this regard:

- Family pensioners and gallantry award winners should be paid on or before April 30, 2023, in a single installment.

- Those above 70 years of age should be paid on or before June 30, 2023. The Union has the option to pay the entire due in one installment or spread it within the outer limit of June 30, 2023.

- For remaining personnel, payments should be made in three equal installments - on or before August 31, 2023, November 30, 2023, and February 28, 2024.

5. If BCI doesn't see urgency in curbing lawyers' strikes, we will have to appoint another body: Supreme Court

Case Title: Common Cause v. Abhijat and Others

A Division Bench of Justices Dinesh Maheshwari and Sanjay Kumar expressed its anguish with the Bar Council of India (BCI) not being able to finalise norms for disciplinary action against lawyers who go on strike.

The Court opined that it would be left with no alternative but to directly impose punishments on lawyers guilty of boycotting court work.

When counsel for the BCI had sought more time to file a detailed affidavit incorporating suggestions of State Bar Councils in the matter, Justice Maheshwari remarked,

"You have to take this seriously. If members of the Bar Council of India cannot see the urgency [in this matter] then we will have to appoint another body. Harish Uppal (2002) was rendered by this Court when, sir? And where are we now? You are the body responsible, sir. If anything of this nature has happened then you must act."

6. Citizens cannot claim right to directly petition Parliament to discuss important issues: Supreme Court

Case Title: Karan Garg v. Union of India

A three-judge Bench of Chief Justice of India (CJI) DY Chandrachud and Justices PS Narasimha and JB Pardiwala remarked that a citizen cannot seek a right to stand up in Parliament.

In doing so, the Court dismissed a public interest litigation (PIL) seeking a declaration that citizens have a fundamental right to directly petition Parliament and invite deliberation on important issues of public interest.

"Go and talk outside Parliament. Go to your local MP and present a petition. But a citizen cannot seek a right to stand up in Parliament," the Bench said.

The Court further observed that the relief sought fell exclusively within the domain of Parliament and state legislatures. Therefore, such directions could not be passed in a PIL.

"We have to draw a line and we cannot tell Parliament what to do."

7. Period of emergency parole granted during COVID-19 will not be part of actual sentence: Supreme Court

Case Title: Anil Kumar vs State of Haryana and Others

A Division Bench of Justices MR Shah and CT Ravikumar dismissed an application by a convict seeking consideration of parole granted during the COVID-19 pandemic to be counted as part of his actual sentence since the same was involuntary.

The Court had held that for the purpose of considering actual imprisonment, this period of parole is to be excluded.

8. Magistrates should be sent to judicial academies to upgrade skills if they needlessly send people to custody: Supreme Court

Case Title: Satender Kumar Antil v. Central Bureau of Investigation and Another

A three-judge Bench of Justices Sanjay Kishan Kaul, Ahsanuddin Amanullah and Aravind Kumar observed that magistrates should not unnecessarily send people to custody.

The Court said that such magistrates who send people to custody unnecessarily should have their judicial work withdrawn and they should be send to judicial academies for training.

"Orders are being passed which have a dual ramification i.e., sending people to custody where they are not required to be so sent and creating further litigation by requiring the aggrieved parties to move further. This is something which cannot be countenanced and in our view, it is the duty of the High Courts to ensure that the subordinate judiciary under their supervision follows the law of the land. If such orders are being passed by some Magistrates, it may even require judicial work to be withdrawn and those Magistrates to be sent to the judicial academies for upgradation of their skills for some time."

It is the duty of High Courts to ensure that the subordinate judiciary follows the law of the land, the Bench added.

9. Supreme Court grants bail to law intern who moved court alleging communal frenzy in Indore prevented her from filing bail

Case Title: Noorjahan @ Noori and anr v. State of Madhya Pradesh

A Division Bench of Justices Ajay Rastogi and Bela M Trivedi granted bail to the 23-year-old law intern of a practicing Muslim advocate who had alleged that the 'communal frenzy' in Indore was preventing her from filing bail application before courts in Madhya Pradesh (MP).

The petitioners, a practicing advocate and her law intern, moved the Court contending that a criminal complaint against them was baseless.

The intern was booked after lawyers objected to her allegedly recording court proceedings of a bail hearing of a Bajrang Dal leader accused of vandalism during the screening of Bollywood film Pathaan.

It was alleged that she was subsequently frisked and abused by a group of rowdies, and thereafter arrested at their behest after they claimed that she worked for banned organisations like the Popular Front of India (PFI).

10. Supreme Court orders all High Courts to establish online RTI portals within 3 months

Case Title: Pravasi Legal Cell v. Union of India and Others

A three-Judge bench of Chief Justice of India DY Chandrachud and Justices PS Narasimha and JB Pardiwala ordered all the twenty-five High Courts in the country to set up online Right to Information (RTI) Act portals to deal with RTI applications.

The Court also asked registras-general of High Courts to seek directions from their respective Chief Justices for establishment of such portals for district judiciary.

Read the Supreme Court fortnightly - March 1 to 15, 2023 here.

Read the Supreme Court fortnightly - February 15 to 28, 2023 here.

Read the Supreme Court fortnightly - February 1 to 15, 2023 here.

Read the Supreme Court fortnightly - January 15 to 31, 2023 here.

Read the Supreme Court fortnightly - January 1 to 15, 2023 here.

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