The Lawyer's Digest: Supreme Court Judgments passed in August 2023

The Lawyer's Digest is a collection of concise summaries of judgments passed by the Supreme Court of India over the course of a month.
Supreme Court Lawyers Digest August 2023
Supreme Court Lawyers Digest August 2023

The Lawyer's Digest is a collection of concise summaries of judgments passed by the Supreme Court of India over the course of a month.

Topics have been sub-divided into areas of law for ease of reading. Here are the summaries of judgments passed in August 2023.

Arbitration

In M/s Hindustan Construction Company Limited v. M/s National Highway Authority of India, it was held that a dissenting opinion cannot be treated as an award if the majority is set aside. It can only provide useful clauses in case there is a procedural issue that becomes critical while hearing a challenge to the award. Furthermore, it was noted that when a majority award is challenged, the court’s focus is to check for errors and illegalities in the majority award and that the minority award merely embodies the views of the arbitrator disagreeing with the majority. In fact, there is no occasion for anyone to challenge the dissenting opinion whatsoever. The bench reiterated the judgment in DAME(P)L v DMRC, (2021) 5 SCR 984 that when an award is rendered by non-lawyers/judges, it is not meant to be scrutinised in the same manner as an award prepared by legally trained people.

[S. Ravindra Bhat J., Aravind Kumar J.]

[Keywords: Gary Born, Russel on Arbitration, dissenting opinion, dissenting award]

In HJ Baker and Bros. Inc. v. The Minerals and Metals Trade Corporation Ltd. (MMTC), the bench held that MMTC was precluded from raising arguments on proof of quantum of damages and mitigations of losses as they were questions of fact which MMTC did not raise either before the arbitral tribunal and the Section 34 court. Further, the bench held that the measure of damages had to be in accordance with Section 73 of the Indian Contract Act, that is, it had to be equivalent to the market price of goods on the date of the breach, less the contract price. The bench also noted that though Vedanta Ltd. v. Shenzhen Shandong Nuclear Power Construction Co. Ltd disapproved a uniform award of interest in foreign currency and recommended that LIBOR rates plus the prevailing rate in percentage points, should be awarded, the distinction noted by the judgment, per se, does not constitute ‘patent illegality’ vitiating the award.

[S. Ravindra Bhat J., Aravind Kumar J.]

[Keywords: best evidence, Murlidhar Chiranjilal, mitigation of damages, breach date rules]

In Larsen Air Conditioning v. Union of India, the question of law that arose was whether the High Court in the impugned judgment erred by modifying the award to the extent of reducing the interest, from compound interest at 18% p.a. to simple interest at 9% p.a. After finding that the provisions of the Arbitration and Conciliation Act, 1996 govern the present case, the Court relied on the judgments in Associated Builders v. DDA [2014] 13 SCR 895, Ssangyong Engineering Co. v. NHAI [2019] 7 SCR 522 and Delhi Airport Metro Express Pvt. Ltd. v Delhi Metro Rail Corporation Ltd [2021] 5 SCR 984 to hold that the scope of interference under Section 34 is limited to patent illegality. Further, the Court clarified that the Legislature had consciously omitted the court’s power to modify an award under Section 34 as held in NHAI v. M.Hakeem [2021] 5 SCR 368. The Court held that the rate of interest awarded by the tribunal in the present case is in accordance with Section 31(7)(b) and thus, the Impugned judgment was incorrect in modifying the award.

[S. Ravindra Bhat J, Dipankar Dutta J]

[Keywords: patent illegality, modification of award, limited scope of interference, consciously omitted]

In SD Shinde Tr. Partners v. Government of Maharashtra, the appellant-contractor challenged the orders of the High Court and the trial court setting aside an Arbitral Award on grounds of legal misconduct for awarding substantial claims to the appellant-contractor. The dispute in the instant case arose from a construction contract awarded by the respondent to the appellant. In the instant case, after the final bill was prepared, the contractor wrote to the Executive Engineer of the Maharashtra Irrigation Department and thereafter to the higher authorities, and submitted the final bill on 14.12.1992. The State did not render its decision on the same. There were inordinate delays beyond the scheduled completion date in 1985 and extensions were granted. The State’s argument that the claims were time-barred was negated by the Supreme Court since the expiration of the defects liability period did not take place. Reiterating the principle of law evolved in JC Budhiraja v. Chairman, Orissa Mining Corporation, the Court said that the contractual period of limitation for filing claims cannot be conflated with the period of limitation for filing of Arbitration Petition. In conclusion, the Court held that the award was a reasoned one and that the trial court and the High Court had erred in exceeding their scope under Sections 34 and 37.

[S. Ravindra Bhat J, Dipankar Dutta J]

[Keywords: Extension of time, Limitation for filing application, error apparent on the face of the award, reasoned award]

In Konkan Railway Corporation Limited v. Chenab Bridge Project Undertaking, the Court held that the High Court's interpretation that where two constructions are possible, the Court must prefer the one that gives effect and voice to all clauses is not absolute and that the same may not be made during proceedings under Section 37.

[DY Chandrachud CJI, PS Narasimha J., JB Pardiwala]

[Keywords: Ss. 34 and 37 of the Arbitration and Conciliation Act 1996 ]

Civil Procedure Code, Transfer of Property, Evidence, Land

In H Vasanthi v. A Santha (Dead) Through LRS. and Ors., the Court held that there was no prohibition to effect a partition otherwise than through an instrument in writing by duly complying with the requirement of the law, and that the division of property may also be effected under a settlement or an oral understanding. On the facts, it was held that the plaintiff was legally obliged to discharge the burden that the plaint schedule was not only a coparcenary property but continued to be so after the introduction of Section 29A of the Hindu Succession Act (conferring on unmarried daughters the status of coparceners), and she was entitled to enforce the claim for partition. The Court held that the plaintiff failed to demonstrate that the plaint schedule continued to be a coparcenary property available for partition, and therefore, rejected the appeal.

[Bela M. Trivedi J., SVN Bhatti J.]

[Keywords : Joint Family property, partition, settlement, unmarried daughter, coparcenary property, coparcener]

In State Bank of India v. AGD Reddy, it was held that the aspects of failure to conduct a periodic inspection and the negligence in not stipulating the taking of immovable property as collateral security, in spite of the party (borrower) offering it, constrained the Court to conclude that there was material on record for the State Bank of India to pass the order of penalty against the respondent-field officer. The penalty imposed on the respondent was also not interfered with. Reversing the decision of the High Court, it was further held that the scope of judicial review against a departmental enquiry proceeding is very limited and is not in the nature of an appeal. The Court opined that the limited scope of the judicial review was to ascertain if the decision-making process was legitimate and to ensure that the findings were based on some evidence. In case the findings were found to be based on evidence, then the Court could not be allowed to re-appreciate it and arrive at an independent finding. It was also held that in a disciplinary proceeding, the question of burden of proof would depend on the nature of the charge and the nature of the explanation put forward by the individual.

[JK Maheshwari J., KV Viswanathan J.]

[Keywords : corruption, credit limit, periodic inspection, mortgage, onus of proof, severability of charges, departmental enquiry, scope of judicial review]

In Ketan Kantilal Seth v. The State of Gujarat and Ors., a ‘Miscellaneous Application’ was filed seeking the modification/recall of an earlier order passed by the Supreme Court in a criminal transfer petition. Placing reliance on Order XII of the Supreme Court Rules, 2013, the Court held that any alteration or addition to a judgment pronounced by the Court can be made only to correct a clerical or arithmetical mistake, or an error arising out of an accidental omission. It further held that any application filed on the pretext of a ‘clarification/addition’ while evading the recourse of review ought to be discouraged.

[Surya Kant J., JK Maheshwari J.]

[Keywords : Miscellaneous Application, Review, Typographical or clerical error, Supreme Court Rules, 2013]

In Ilavarasan v. The Superintendent of Police and Ors., the Court considered a challenge to a judgment of the Madras High Court which dealt with Section 7A of the Hindu Marriage Act which merely required the intending spouses to declare to each other their willingness to take each other as spouses and symbolically garlanding each other to get married. The High Court was of the opinion that such marriages involved a public declaration. The Supreme Court negatived the finding of the High Court on the said aspect and held that the High Court superimposed a condition of public declaration which was absent in Section 7A and was also violative of Article 21 of the Constitution. However, the Court upheld the observation of the High Court that advocates should not, in their capacity as Advocates, undertake or volunteer to solemnize marriages.

[Aravind Kumar J., S Ravindra Bhat J.]

[Keywords : Section 7A Hindu Marriage Act, self-respect and secular marriages, public declaration, Article 21 Constitution of India]

The case of M. Sivadasan (Dead) Through LRs and Ors v. A. Soudamini (Dead) Through LRs and Ors, arose out of a suit for partition and mesne profits claiming ancestral rights over some property. The trial court dismissed the suit on the ground that the land and house sought to be partitioned is agricultural land on which the plaintiffs cannot claim any right. The said finding was upheld by the first appellate court as also in the second appeal. The Supreme Court upheld the findings of the three courts below that the land in question was indeed agricultural land. However, importantly, the Court held that even though leave had been granted in the present case under Article 136 of the Constitution, the settled position is that even after the grant of leave, the appellant must show that exceptional and special circumstances exist to reverse the concurrent findings of facts.

[CT Ravikumar J., Sudhanshu Dhulia J.]

[Keywords : Suit for partition, mesne profits, agricultural land, grant of leave, Article 136 Constitution of India, adverse possession]

In YP Lele v. Maharashtra State Electricity Distribution Company Ltd and Ors., it was held that once the counsel had withdrawn his vakalatnama, in the normal course, the trial court ought to have issued notice to the defendants to engage another counsel, which it did not do and proceeded ex parte. Further, since the trial court, in its wisdom and discretion, had later allowed an application under Order IX Rule 13 of the CPC and reversed its ex parte order, the High Court ought to have restrained itself from setting aside the said order which advanced the cause of justice by affording opportunity to both parties so that the suit could be decided on merits.

[Ahsanuddin Amanullah J., Vikram Nath J.]

[Keywords : Order XVII Rule 2 CPC, Order IX Rule 13 CPC, ex parte decree, withdrawal of vakalatnama, failing to appear]

In Smt. Ved Kumari (dead through her legal representative) Dr. Vijay Agarwal v. Municipal Corporation of Delhi through its Commissioner, the Court held that the Executing Court was bound to issue a warrant of possession for effecting physical delivery of the suit land to the decree-holder in terms of suit schedule property and any resistance mounted by a stranger to the decree has to be in terms of Rules 97 to 101 of Order 21 CPC. In the case before it, the Court held that the Executing Court could not have dismissed the execution petition by treating the decree to be inexecutable on the basis that the decree-holder has lost possession to a third party/encroacher as, if this was allowed to happen, every judgment-debtor, who is in possession of the immoveable property till the decree is passed, would hand over possession to a third party to defeat the decree-holder’s right.

[BV Nagarathna J., Prashant Kumar Mishra J.]

[Keywords: Order 21 Rules 97 to 101 CPC, stranger to a decree]

In Prakash (Dead) by LR. v G. Aradhya & Ors., it was held that in terms of the sale deed and the reconveyance deed before the Court, the transaction was not that of a transaction of mortgage of property. This was so because the sale of property was initially absolute and the execution of reconveyance deed, on the same day, only gave rise to the very limited right to the appellants to repurchase the property. The Court distinguished between a mortgage by conditional sale and a sale with a condition of repurchase. It explained that in a mortgage, the debt subsisted and a right to redeem remained with the debtor while a sale with a condition of repurchase was not a lending and borrowing arrangement. It was explained that the proviso to Section 58(c) of the Transfer of Property Act 1882 was enacted to end all controversies by creating a deeming fiction that a transaction was not be deemed to be a mortgage unless the condition for reconveyance was contained in the document which purports to effect the sale.

[Hima Kohli J., Rajesh Bindal J.]

[Keywords: conditional mortgage, reconveyance, mortgage by conditional sale, sale with condition of repurchase, Section 58(c) of the Transfer of Property Act 1882]

In Smt. Shiramabai w/o Pundalik Bhave & Others v. The Captain, Record Officer For OIC. Records, Sena Corps Abhilekh, Gaya, Bihar State And Another, it was held that as per Section 114 of the Indian Evidence Act 1872, if a man and woman cohabit as husband and wife for a long duration, one can draw a presumption in their favour that they were living together as a consequence of a valid marriage.

[Hima Kohli J., Rajesh Bindal J.]

[Keywords: presumption of marriage, Hindu Marriage Act 1955, Pension Regulation For Army 1961]

In Government of Kerala and Anr. v. Joseph and Others, the bench held that proceedings under Section 100 CPC, without framing a substantial question of law, renders the proceedings ‘patently illegal’. Further, as regards to the law of adverse possession, drawing from various judgments, the bench reiterated as below:

i. Possession must be open, clear, continuous, and hostile to the claim or possession of the other party. All three classic requirements must coexist- nec vi, i.e., adequate in continuity; nec clam, i.e., adequate in publicity; and nec precario, i.e., adverse to a competitor, in denial of title and knowledge.

ii. The person claiming adverse possession must show clear and cogent evidence to substantiate such claim.

iii. Mere possession over a property for a long period of time does not grant the right of adverse possession on its own.

iv. Such clear and continuous possession must be accompanied by animus possidendi - the intention to possess or in other words, the intention to dispossess the rightful owner.

v. Such a plea is available not only as a defence when the title is questioned but is also available as a claim to a person who has perfected his title.

vi. Mere passing of an ejectment order does not cause brake in possession neither does it cause his dispossession.

vii. When the land subject of the proceedings in which adverse possession has been claimed belongs to the Government, the Court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to the destruction of a right/title of the State to immovable property.

viii. A plea of adverse possession must be pleaded with proper particulars, such as, when the possession became adverse.

ix. Claim of independent title and adverse possession at the same time amount to contradictory pleas.

x. Burden of proof rests on the person claiming adverse possession.

xi. The State cannot claim the land of its citizens by way of adverse possession as it is a welfare State.

[Abhay S. Oka J., Sanjay Karol J.]

[Keywords: adverse possession, substantial question of law, Section 100 CPC]

In Mala v. State of Punjab, the Supreme Court held that the determination of the market value of land ought to be calculated based on evidence and discussion and it cannot be abruptly doubled and reiterated that a deduction of 1/3rd towards developmental charges was not unlawful.

[Bela Trivedi J., Dipankar Datta]

[Keywords: writ, Land Acquisition Act 1894, Punjab Town Improvement Act 1922]

In Ramathal v. K Rajamani, the Court held that the plea of non est factum could be established if:

i. The person pleading so belongs to a class of persons who through no fault of their own are unable to have any understanding of the purpose of the particular document because of blindness, illiteracy, or some other disability;

ii. The signatory must have made a fundamental mistake as to the nature of the contents of the document being signed; and

iii. The document must have been radically different from the one intended to be signed.

[Vikram Nath J., Ahsanuddin Amanullah J.]

[Keywords: power of attorney, fraudulent misrepresentation as to the character of the document]

In Yadaiah v. State of Telangana, the Court held that only those findings without which a court cannot adjudicate a dispute and form the vital cog in the reasoning of a definite conclusion on an issue on merits constitute res judicata between the same set of parties in subsequent proceedings. The Court held that the effective test to distinguish between a fundamental or collateral determination is hinged on whether the concerned determination was so vital to the decision that without which the decision itself could not stand independently. Where parties were litigating a show cause notice in relation to an alleged violation of assignment conditions, the period of such litigation could not be counted when a subsequent notice had to be issued as the first notice was set aside.

[Surya Kant J., JK Maheshwari J.]

[Keywords: revenue, assignment of non-occupied land to persons belonging to Scheduled Castes or Scheduled Tribes for cultivation, res judicata, temporary patta, Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act 1977, Telangana Land Revenue Act of 1317 Fasli]

In Chairman, Industrial Development Corporation of Odisha v. Late Surgeon Vice Admiral G.P Panda, the question that arose before the Supreme Court concerned the order of the Odisha High Court affirming the title of the respondent-writ petitioner, who was allotted 4.8 acres of land pursuant to a government scheme for veterans in 1979. The said parcel of land became embroiled in litigation when the District Collector, Bhubaneshwar decided to allocate the same land, as part of a larger area of 42 acres to the appellant corporation (IDCO), based on which resumption proceedings for re-entry were initiated against the legal representatives of the respondent. Before the Supreme Court, the appellant asserted that the High Court returned findings on a disputed question of fact concerning the title of the land without trial. Negating this contention, the Court held that the resumption proceedings were unconstitutional since the respondent was not dispossessed in a manner known to law prior to the grant of the land to IDCO.

[Pardiwala J, S.V.N Bhatti J]

[Keywords: Resumption proceedings, re-entry by the lessor, disputed question of fact]

In Shri Nashik Panchvati Panjarpol Trust v. The Chairman, Agricultural Committee, the litigation arose from the terms of a consent order passed by the High Court in 1997 in an earlier set of proceedings, where the court recorded the parties’ consent with respect to the mode and manner of determining the market value for the acquisition of the appellant’s land by the respondent. Further, it was agreed that the appellants would file an application for reference once the possession was handed over and an amount under Section 11 of the Land Acquisition Act has been paid. Before the reference court, the respondent-Agricultural Committee took the ground of limitation. The court held that such an act by the respondent Committee was unwarranted as the consent terms of the High Court’s order were silent as to the date of limitation. Noting that in the instant case, the settlement was necessitated due to losses to both parties, and that the respondent Committee agreed to the determination of the market value of the land by the reference court, the Court held that a ground of limitation based on a procedural formality could not have been raised to defeat the substantive rights of the appellant flowing from the consent terms.

[Bela Trivedi J, Dipankar Dutta J]

[Keywords: Consent terms, determination of market value, doctrine of harmonious construction, procedural formality]

In BESCO Ltd. v. State of Haryana & Ors., the appellants were land owners claiming enhanced compensation. It was held that in determining the market value of acquired land, a court relies on factors like exemplar sale deeds, location/potentiality of land sold through a private sale, and the nature and neighbourhood of the land acquired. The court is also guided by relevant evidence and pragmatic ways of commercial transactions, suitable adjustment towards deduction for development charges, etc. The land was found to be in the hands of the land owners for industrial use, and not agricultural lands, and it was also found to abut a National Highway. Thus, the Court enhanced the compensation to ₹ 1,49,14,975/- per acre with standard statutory benefits. 

[B.R. Gavai, J., SVN Bhatti, J.]

[Keywords : land acquisition, enhancement of compensation, market value, factors for enhancement, LAO, land Acquisition Act, 1893]

In State of Uttar Pradesh v. Vinay Kumar Singh, the appellant challenged an order passed by the High Court in a review petition preferred by it against an order allowing the writ petition of the respondent. The respondent/writ petitioner was awarded a mining lease for sand extending to 25 hectares of land against the payment of royalties per year. It was found that the respondent could not commence mining owing to a certain portion of the allotted land falling within the limits of the State of Madhya Pradesh. Noting that there is a boundary dispute, the respondent made a representation to the Uttar Pradesh government (appellant), who proceeded to raise a demand for the payment of the next instalment of royalty. Aggrieved, the respondent filed the writ petition in the High Court seeking directions for the State to resolve the boundary dispute, and in alternative, not to raise the demand for royalty pending such resolution. The High Court directed the appellant to not collect any royalty pending the resolution of the boundary dispute. Subsequently, a second writ petition was filed by the respondent seeking a refund of the deposit of royalty on account of non-mining, which was allowed. However, the second judgment, which was impugned, had erroneous findings concerning non-handing over of the possession to the respondent and an inflated amount of deposit which the respondent sought as refund in the second writ petition, which were challenged in a review petition by the appellant. The Supreme Court found that the State of Uttar Pradesh's (appellant's) stand was correct, and had ordered for the second writ petition to be remanded back to the High Court for fresh adjudication.

[D.Y Chandrachud CJ, P.S Narasimha J, Manoj Misra J]

[Keywords: boundary dispute, refund of royalties, erroneous findings, verification of the mining area]

Company Law

In Industrial Development Bank of India (Through Stressed Assets Stablization Fund Constituted by the Government of India) v. Superintendent of Central Excise and Customs and Others, the bench held that the provisions of the Customs Act did not create a statutory first charge to override the provisions of the general law under Section 529A and Section 530 of the Companies Act 1956. The bench further held that the Customs Act did not override the statutory preference in terms of Section 529A of the Companies Act, which treats the secured creditors and the workmen’s dues as overriding preferential creditors; and the government dues limited to debts ‘due and payable’ in the next twelve months before the relevant date, which are to be treated as preferential payments under Section 530 of the Companies Act, but are ranked below overriding preferential payments and have to be paid after the payment has been made in terms of Section 529 and 529A of the Companies Act. Thus, the prior secured creditors were held to be entitled to enforce their charge, notwithstanding the government dues payable under the Customs Act.

[Sanjiv Khanna J., Sudhanshu Dhulia J.]

[Keywords: preferential treatment, Section 529A and 530 of the Companies Act 1956, ‘debt due’, ‘debt due and payable’, crown debts, Article 372(1) of the Constitution of India, Section 15, 46, 68, 142A of the Customs Act]

Consumer Law

In Experion Developers Private Limited v. Himanshu Dewan and Sonali Dewan And Others, the bench stated that the limitation period in a consumer period would be decided as per Section 69 of the Consumer Protection Act 2019, that is, a two-year limitation period to file a complaint from the date on which the ‘cause of action’ has arisen. A cause of action is complete only when the aggrieved party gets the right to invoke the jurisdiction of the court/forum. The bench further extended the principle laid down in Kunhayammed and Khoday Distilleries to civil appeals and held that the dismissal of a civil appeal only puts an end to the litigation inter se but this does not operate as res judicata as regards third parties. It was held that an unreasoned order dismissing an appeal did not attract Article 141 or the doctrine of merger since no law is declared.  

[Sanjiv Khanna J., Bela M. Trivedi J., Ujjal Bhuyan J.]

[Keywords: doctrine of precedents, res judicata, doctrine of merger, dismissal without reasons, Article 141, binding precedent, Kunhayammed]

In Hind Offshore Pvt. Ltd. v. IFFCO – Tokio General Insurance Co. Ltd., the bench held that mere knowledge on the part of the insurer that there was a breach of warranty would not amount to a waiver in the absence of an express representation by the insured to that effect. On a consideration of Sections 35, 37, 41(5) and 55 of the Marine Insurance Act 1963, read with the Classing Rules, the Bench held that unless the provisions of the Marine Insurance Act were complied with, the insurer is discharged from liability as from the date of the breach of warranty but without prejudice to any liability incurred before that date. In the case of a time policy, there is no implied warranty that the ship shall be seaworthy at any stage but where with the privity of the assured, the ship is sent to sea in an unseaworthy state, the insurer is not liable for any loss attributable to unseaworthiness.

[AS Bopanna J., MM Sundresh J.]

[Keywords: Uberrimae Fidei, Marine Insurance]

Criminal Law

In Abhishek v. State of Madhya Pradesh, the bench quashed criminal proceedings against the in-laws relying upon categories (1) and (5) of the dicta laid down in Bhajan Lal since the complaints were made after a period of 4 years of the couple’s separation and that the couple did not even reside with the in-laws.

[Aniruddha Bose J., Sanjay Kumar J., SVN Bhatti J.]

[Keywords: Bhajan Lal, Section 482 CrPC, dowry]

In V. Senthil Balaji v. The State Represented by Deputy Director and Ors., the bench summarized the law concerning persons arrested under the Prevention of Money Laundering Act (PMLA) as below:

  1. When an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002, no habeas corpus would lie and any plea of illegal arrest is to be made before the concerned jurisdictional magistrate since the custody becomes judicial.

  2. Non-compliance of the mandate of Section 19 of the PMLA, 2002 would enure to the benefit of the arrested person and the competent court shall have the power to initiate action under Section 62 of the PMLA for such non-compliance.

  3. A remand order has to be challenged only before a higher forum as provided under the CrPC, 1973 when it depicts a due application of mind both on merit and compliance of Section 167(2) of the CrPC, 1973 read with Section 19 of the PMLA 2002.

  4. Section 41A of the CrPC, 1973 has got no application to an arrest made under the PMLA 2002.

  5. The maximum period of 15 days of police custody is meant to be applied to the entire period of investigation – 60 or 90 days - as a whole.

  6. The words “such custody” occurring in Section 167(2) of the CrPC, 1973 would include not only a police custody but also that of other investigating agencies.

  7. The word “custody” under Section 167(2) of the CrPC, 1973 shall mean actual custody.

  8. Curtailment of 15 days of police custody by any extraneous circumstances, act of God, an order of the court not being the handy work of the investigating agency would not act as a restriction.

  9. Section 167 of the CrPC, 1973 is a bridge between liberty and investigation performing a fine balancing act.

  10. The decision of this Court in Anupam J. Kulkarni (1992) 3 SCC 141, as followed subsequently requires reconsideration by a reference to a larger bench.

 [AS Bopanna J., MM Sundresh J.]

[Keywords: 167(2) CrPC, habeas corpus, judicial custody, policy custody, “custody”, Article 21 and 22 of Constitution of India, right to life and liberty, PMLA, money laundering, Vijay Madanlal Choudhary]

In Dinganglung Gangmei v. Mutum Churamani Meetei & Ors, the Court issued a slew of directions to ensure the twin objective of ensuring that, once the violence in Manipur ceases, and that the perpetrators of violence are punished according to the procedure established by law and further. that the faith and confidence of the community in the justice system is restored. The second objective of the directions was to ensure that the rule of law is restored and public confidence in the investigative and prosecutorial process is sustained.

[DY Chandrachud CJI., JB Pardiwala J., Manoj Misra J.]

[Keywords: Manipur violence, Kuki, Meitei, sectarian strife, Zomi Students Federation v. Union of India]

In Kamal v. State (NCT of Delhi), the bench noted that the case before it was one of circumstantial evidence and that it was a settled principle of law that however strong a suspicion may be, it cannot take the place of proof beyond reasonable doubt. Hence, the bench held that the prosecution had failed to prove the incriminating circumstances beyond reasonable doubt. The evidence regarding the last seen theory was found to be unreliable as was the evidence regarding the CDR as the SIM was not proved to be in possession of the accused but someone else.

[BR Gavai J., Prashant Kumar Mishra J.]

[Keywords: Sharad Birdhichand Sharda, circumstantial evidence, CDR, last seen theory]

Haji Iqbal @ Bala Through S.P.O.A. v. State of U.P. and Ors. arose out of a judgment of the High Court refusing to quash an FIR under Sections 376D and 506 of the IPC. On a perusal of the FIR and evidence, the Court found that the FIR did not disclose anything against the appellant, a Vice Chancellor of Glocal University. It further held that even at the end of the investigation, if nothing incriminating has surfaced against the appellant, the continuation of criminal proceedings against him would be nothing but an abuse of the process of law. The Court also noticed that on the alleged act of gang rape in 2018, the FIR was lodged in the year 2022; though no finding was returned by the Court on this aspect and left the issue to the trial court where the other accused were being tried.

[BR Gavai J., JB Pardiwala J.]

[Keywords : Quashing of FIR, Vice Chancellor, political bias, delay in FIR, gang rape, abuse of process]

Iqbal @ Bala Through S.P.O.A. v. State of U.P. and Ors. arose out of a judgment of the High Court refusing to quash an FIR under Sections 376, 323 and 354(A) IPC, and Sections 7, 8 of the POCSO Act, 2012. Although the Court found that the allegations levelled in the FIR do not inspire confidence in the absence of any specific date, time, etc. of the alleged offences, it asked the petitioner to prefer a discharge application before the trial court under Section 227, CrPC., since the investigation was complete and the charge sheet was ready to be filed. The Court also observed that when a petitioner approaches a Court under Section 482, CrPC or Article 226 to get an FIR quashed on the ground of it being a vexatious FIR that was instituted for wreaking personal vengeance, the Court owes a duty to look into the FIR with care and a little more closely, by reading between the lines.

[BR Gavai J., JB Pardiwala J.]

[Keywords : frivolous or vexatious litigation, discharge, Section 482 Cr.P.C., Article 226, quashing, personal vengeance, Section 227 Cr.P.C.]

Mahmood Ali v. State of U.P. and Ors., also arose out of a judgment of the High Court refusing to quash an FIR under Sections 420, 467, 468, 471, 342, 386, 504 and 506, IPC. Noticing that the FIR was filed 14 years after the alleged offence, and did not mention the specific date and time when the alleged offence took place, and further that even if the entire case of the prosecution was to be believed, none of the ingredients to constitute the offence were disclosed, the Court quashed the FIR. It was held that the present case fell under parameters Nos. 1, 5 and 7 as laid down in State of Haryana v. Bhajan Lal (AIR 1992 SC 604)

[BR Gavai J., JB Pardiwala J.]

[Keywords : Quashing of FIR, Bhajan Lal, Delay in lodging FIR, concocted and fabricated case]

Mohmmad Wajid and Anr. v. State of U.P. and Ors., also arose out of a judgment of the High Court refusing to quash an FIR under Sections 395, 504, 506 and 323 of the IPC. The primary allegation against the petitioner was that of dacoity. Relying on Bishambhar Nath v. Emperor AIR 1941 Oudh 474 for the interpretation of the phrase ‘for that end’ in Section 390, IPC, the Court held that all three ingredients required to attract the offence of dacoity were not present in the allegations at hand. In respect of the allegation under Section 504, IPC, it was held that mere abuse, discourtesy, rudeness or insolence may not amount to intentional insult within the meaning of Section 504, IPC unless it is likely to incite the person insulted to commit a breach of peace.

[BR Gavai J., JB Pardiwala J.]

[Keywords : strict construction of penal statute, multiple FIRs, dacoity, criminal intimidation, quashing of FIR, theft]

Salib @ Shalu @ Salim v. State of U.P. and Ors., arose out of a judgment of the High Court refusing to quash an FIR under Section 506, IPC. The Court noted that (i) the appellant had not been named in the FIR as one of the accused, and (ii) the statement of the first informant was recorded under Section 161 CrPC, wherein the name of the appellant surfaced. It further noted that the first informant in her further statement made out altogether a different story than what she had narrated in the FIR. On subsequent addition of Section 195A, IPC against the appellant, the Court held that there was nothing on record to indicate that the accused persons threatened the first informant with an intent to make the first informant give false evidence before the Court of law. Accordingly, the Court quashed the FIR against the petitioner.

[BR Gavai J., JB Pardiwala J.]

[Keywords : Quashing, false implication, hardened criminal, Bhajan Lal, extortion, cognizable offence]

In A. Sreenivasa Reddy v. Rakesh Sharma and Anr., the petitioner was serving as Assistant General Manager of the State Bank of India and was alleged to have conspired with other co-accused to cheat the bank by sanctioning a corporate loan of ₹ 22.50 crores. The Court held that though the petitioner, who was working in a Nationalised bank, is a public servant, yet the provisions of Section 197 CrPC would not be attracted at all as Section 197 was attracted only in cases where the public servant is such who is not removable from his service save with the sanction of the government. Relying on K. Ch. Prasad v. Smt. J. Vanalatha Devi and Ors. (1987) 2 SCC 52, it was held that the petitioner was not holding such a post, and therefore, Section 197 CrPC was held not to apply.

[BR Gavai J., JB Pardiwala J.]

[Keywords : Sanction for prosecution, Section 197 Cr.P.C., public servant, FIR, Bank loan, Prevention of Corruption Act, 1988]

In Mukesh Singh v. The State (NCT of Delhi), the bench held that a test identification parade is not hit by Article 20(3) of the Constitution of India. It was further held that, after the introduction of Section 54A, CrPC, the accused cannot refuse to face the TIP even though he may have a legitimate ground to resist facing the TIP on the ground that the witnesses had a chance to see him either at the police station or in the Court. This is so because it will always be open to the accused to raise any legal grounds impugning the legitimacy and evidentiary value of the TIP during the trial.

[MM Sundresh J., JB Pardiwala J.]

[Keywords: robbery, murder, test identification parade, TIP, Section 8 and Section 27 of the Evidence Act 1872, Section 54A of the CrPC]

In XXX v. Union Territory of Andaman & Nicobar Islands & Anr., the Supreme Court reiterated the factors to be taken into consideration when considering bail applications such as whether there was any prima face or reasonable ground to believe that the accused had committed the offence, nature and gravity of the accusation, the severity of the punishment in the event of conviction, the danger of the accused absconding or fleeing, if released on bail, the character, behaviour, means, position and standing of the accused, the likelihood of the offence being repeated, reasonable apprehension of the witnesses being influenced, and the danger of justice being thwarted by grant of bail. On the survivor’s plea that her family’s life was under threat, the bench directed that the Union Territory take responsibility about the same.

[Vikram Nath J., Ahsanuddin Amanullah J.]

[Keywords: rape, Chief Secretary, conditions for bail, consideration while granting bail]

In Ram Manohar Singh v. The State of Uttar Pradesh, the bench held that once the trial court believed the testimony of the eyewitnesses, the failure to recover the gun used by the accused was not at all significant. Furthermore, it was held that Exception 4 to Section 300, IPC was inapplicable in the case before it since the accused deliberately carried a gun with himself, which proved that the act was premediated. 

[Abhay S. Oka J., Pankaj Mithal J.]

[Keywords: premeditation, Exception 4 to Section 300 IPC, murder]

In Moorthy v. State of Tamil Nadu, the bench reaffirmed that extrajudicial confession was always a weak piece of evidence and in the case before it, it doubted the genuineness the of the extrajudicial confession as it was made by the accused before a stranger. The Court could not bring itself to rely upon the alleged recovery of the dead body because it was admittedly found from a place that was accessible to everyone and not a peculiar place that could only be known to the accused. 

[Abhay S. Oka J., Sanjay Karol J.]

[Keywords: extrajudicial confession, discovery of body]

In Bachpan Bachao Andolan v. Union of India & Ors., the Supreme Court issued detailed guidelines on the selection, functioning, and pay of "support persons" to assist victims and their families in cases under the Protection of Children from Sexual Offences Act.

[S. Ravindra Bhat J., Aravind Kumar J.]

[Keywords: juvenile justice, POCSO, children, Children Welfare Committee, ‘support person’]

In Harendra Rai v. The State of Bihar and Ors., the bench lamented that all the three main stake holders in the criminal trial, namely the Investigating Officer being a part of the police of the State of Bihar, the Public Prosecutor, and the Judiciary, have ‘utterly failed’ to keep up their respective duties and responsibilities cast upon them. It further lamented that the trial court and the High Court miserably failed to notice the sensitivity and intricacies of the case since both courts completely shut their eyes to the manner of the investigation, the prosecutor’s role, and the highhandedness of the accused, as also the conduct of the Presiding Officer of the trial court. The bench reiterated that an FIR was a public document under Section 74 of the Indian Evidence Act and that an injured person’s statement recorded as FIR can also be treated as evidence under Section 32 of the Indian Evidence Act. The bench, admittedly departing from procedure, stated that though judicial notice of any fact was generally not taken in criminal matters, the case before it stood on a different footing. It proceeded to exercise its powers based on the Inspection Notes of the Inspecting Judge who published scathing reports about the conduct of trial and witness intimidation.

[Sanjay Kishan Kaul J., Abhay S Oka J., Vikram Nath J.]

[Keywords: ‘qui facit per alium facit per se’, witness intimidation, abduction of witness, habeas corpus, rarest of the rare, ‘res judicata pro veritate accipitur’, judicial notice, conduct of accused, Section 8, 32, 56, 74 of the Indian Evidence Act , ‘qui sentit commodom, sentire debit et onus’, Lalu Prasad Yadav, dying declaration, Prabhunath Singh, Rajendra Rai, Lalmuni Devi, appreciation of ocular evidence, role of public prosecutors, Section 367, 391 and 401 of CrPC]

In Sunil Kumar v. State of UP & Anr., the bench quashed proceedings where the chargesheet was filed under Sections 323, 504 and 506 of the IPC as it felt that the nature of the allegations were trivial in nature, and found that there was no progress made in the proceedings since the chargesheet was filed in the 2015, and that the continuance of the proceedings would result in the appellant being persecuted and harassed. The Bench noted that "such a petty incident which took place in their office should have been resolved by the parties on that day itself, instead of stretching it so far.

[Sanjiv Khanna J., Bela Trivedi J.]

[Keywords: Section 482 CrPC]

In Ashok Shewakramani & Ors. v. State of Andhra Pradesh and Anr, the bench held that in order to hold the appellants liable under Section 141(1) of the Negotiable Instruments Act (NI Act), it was important to prove that the appellants were directors who “were in charge of and were responsible for the conduct of the company.” In this case, the appellants were, in fact, neither the signatories to the cheques nor whole-time directors. It was further held that statutory notices were not even served to the accused persons in the present case. Significantly, the bench held that on a plain reading of Section 141 of the NI Act, it was "apparent that the words 'was in charge of' and 'was responsible to the company for the conduct of the business of the company' cannot be read disjunctively and the same ought be read conjunctively in view of use of the word 'and' in between."

[Abhay S Oka, J., Sanjay Karol J.]

[Keywords: cheque bounce, Section 138, 141(1) of the Negotiable Instruments Act 1881, managing director, vicarious liability]

In State of Karnataka Lokayukta Police v. S. Subbegowda, the bench held that as per Section 19(3) and Section 19(4) of the Prevention of Corruption Act 1988, despite anything stated to the contrary in the CrPC, no finding, sentence or order passed by the Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of, the absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of the Court, a failure of justice has in fact been occasioned. One of the illustrative factors to determine whether any error or failure of justice has occurred is to see whether such an objection could and should have been raised at an earlier stage in the proceeding.

[Aniruddha Bose J., Bela M Trivedi J.]

[Keywords: Section 13 and 19 of Prevention of Corruption Act 1988, discharge, Section 227 and 239 of the CrPC, criminal misconduct, previous sanction necessary for prosecution, ‘a failure of justice has in fact been occasioned’]

In Avtar Singh & Anr v. State of Punjab, the appellants challenged their conviction under Sections 342 and 376(2) of the Indian Penal Code on several grounds including the effect of acquittal of one of the co-accused by the trial court at whose residence the alleged incident took place, non-production of the prosecutrix’s clothes from the day of the alleged incident, the prosecution’s admission of certain relevant facts such as the presence of construction labourers at the site of offence as well as the adverse findings returned by the Medical Officer who examined the prosecutrix two days after the alleged incident. The Supreme Court set aside the judgment of the High Court and acquitted the appellants while noting that the prosecution failed to produce evidence that linked the appellants to the offence.

[Hima Kohli J., Rajesh Bindal J.]

[Keywords: chain of events, discrepancies, adverse inference, acquitted]

In State of Punjab v. Paramjit Singh, the question arose before the Supreme Court as to whether the High Court’s judgment acquitting the respondent-accused due to the implausibility of the prosecution’s case under Section 302 of the Indian Penal Code, warrants interference. The case involved the respondent-accused challenging his conviction before the High Court on the ground that the testimony of two of the prosecution witnesses, (PW-7 and PW-8) could not be considered. The High Court found that PW-7, who claimed to be an eyewitness to the incident, did not choose to report the incident to the police, while PW-8, who claimed to have heard the respondent-accused’s extra-judicial confession, was disbelieved as no evidence was led to establish that the respondent-accused reposed implicit faith in PW-8 for such a confession to take place. Finding thus, the Supreme Court held that the High Court’s view was a possible one that warranted no interference.

[Abhay S. Oka J, Sanjay Karol J.]

[Keywords: unnatural conduct, implicit faith, cogent reasons, possible finding]

In Wazir Khan v. State of Uttarakhand, the Supreme Court laid down the conditions under which the prosecution can successfully invoke Section 106 of the Evidence Act and thrust the burden of proof on the accused to disprove a reasonable adverse inference against him when there are certain special facts which are within the accused person’s knowledge. In this case, the appellant-accused was charged and convicted under section 302 of the Indian Penal Code for the murder of his wife at their residence. During the trial there was no dispute about the fact that the accused was present at the residence on the date when the incident took place. Further, his defence was found to be falsified. The Supreme Court, referring to a catena of judgments, held that in such situations, the prosecution is entitled to the benefit under the doctrine of presumption in the absence of direct evidence when the accused either fails to offer an explanation to the incriminating evidence put to him or offers an explanation which is found to be untrue. If so, the same can be construed as the missing link in establishing the guilt of the accused, the Court said.

[Pardiwala J, Manoj Misra J]

[Keywords: Circumstantial evidence, Doctrine of Presumption, chain of circumstances, legitimate inference]

In DDA v. Vandana Gupta, the Supreme Court was called upon to adjudicate the correctness of a Metropolitan Magistrate’s order acquitting two of the four directors of a company found to be in violation of the provisions of DDA Act. Pursuant to the appellant’s complaint, criminal proceedings were commenced against the offending company and its four directors, of whom two directors were acquitted by the Metropolitan Magistrate upon finding that they were not in-charge of the day-to-day activities of the said company. The order of acquittal was challenged before the High Court, and upon the High Court’s refusal to allow the appeal, the appellants approached the Supreme Court. After examining the principles of vicarious liability vis-à-vis the acts of a company under the DDA Act, the Supreme Court found that the Metropolitan Magistrate’s order warranted no interference.

[Pardiwala J, Manoj Misra J]

[Keywords: vicarious liability, day-to-day affairs/management]

In Kishor Balkrishna Nand v. State of Maharashtra, the appellant moved the Supreme Court against the order of the High Court refusing to quash the issue of process by a magistrate in a private complaint made by the respondent State under Section 500 of the Indian Penal Code. Following a hiatus of 8 years, the appellant sought to challenge the magistrate’s order issuing process before the High Court which was dismissed. In view of the same, the Supreme Court analysed whether an offence of defamation has been made out from the private complaint before the magistrate. Noting the eighth exception to Section 499, the Supreme Court held that no case of defamation has been made out against the appellant and consequentially, the order of the High Court as well as the order of the magistrate issuing process in the private complaint were set aside.

[Pardiwala J, Manoj Misra J]

[Keywords: Defamation, Good Faith, lawful authority, issue of process]

In Pradyuman Bisht v. Union of India, the Supreme Court, observing the alarming decline of security for judges, lawyers and witnesses, proceeded to formulate directions for ensuring security within court premises and strengthening the digital infrastructure. The Court was aided by the submissions of counsel and a report prepared by Senior Advocate Siddharth Luthra, who was appointed as Amicus Curiae in the matter. The Court proceeded to issue certain directions which inter alia require an integrated security plan formulated at the level of High Courts in consultation with State Home Departments, setting up of permanent security personnel and screening machinery at entry/exit points for court complexes, digitalization of court infrastructure, streamlining the plan for installation of CCTV infrastructure at all court complexes and ensuring facilities for live-streaming and audio-visual recording of witness testimonies during trial. 

[S. Ravindra Bhat J, Dipankar Dutta J]

[Keywords: Security, directions, CCTV, constant monitoring, digital infrastructure]

In Sathyan v. State of Kerala, the Supreme Court had the occasion to revisit the settled principles of law governing convictions based solely on the testimonies of official witnesses in cases involving controlled/prohibited substances. The instant case involved the appellant challenging a High Court order which confirmed his conviction by the trial court in a case under the Kerala Abkari Act. The conviction was based on the testimony of three witnesses, two of whom were State’s witnesses and one witness was an independent witness who later turned hostile. The Court observed that testimonies of official witnesses cannot be ipso facto discarded without any reasonable grounds for bias on part of such witnesses and that the presence of independent witnesses is not mandatory.  Further, it was held that systemic delays cannot be held to be fatal to the prosecution’s case unless evidence is led to show that such delay caused prejudice.

[Abhay S. Oka J, Sanjay Karol J.]

[Keywords: Abkari Act, interpolation, lack of independent witnesses, reasonable grounds for bias, real danger of bias, delay in submission of final report]

In Balla @ Farhat & Ors v. State of Madhya Pradesh, the appellants challenged their conviction under Section 411 read with Section 120-B of the Indian Penal Code. The facts of the matter showed that as against appellants A-5, A-6 and A-7, the charges were supported by seizure memos noting the recovery of stolen currency notes in the presence of two witnesses, PW-6 and PW-7. The Court noted that only A-5’s conviction was recorded by the High Court under Section 120-B which cannot be sustained in light of the provisions of the statute necessitating two or more people for the charge of conspiracy to be made out. As regards A-6 and A-7, their convictions were also overturned by recording that the seizure memos and cross-examination of PW-6 and 7 established that neither of them entered the premises when the IO had seized the stolen currency notes from the accused. Thus recovery was not proved. Noting thus, the Supreme Court proceeded to acquit the accused.

[Abhay S. Oka J, Sanjay Karol J]

[Keywords: Conspiracy, seizure memo, hostile witness, proof of recovery]

In Manoj Kumar Soni v. State of Madhya Pradesh, the Supreme Court had the occasion to examine whether convictions can be secured solely on account of the disclosure statements of the co-accused before the IO without any supporting evidence. The appellants challenged their conviction, which was affirmed by the High Court in a case under Section 411 read with Section 120-B of the Indian Penal Code. In the facts of the case, the Court found that the disclosure statements of the co-accused were not credible in light of the other evidence available on record. The disclosure statements forming basis of Manoj Soni’s conviction were not held to be credible as the seizure witnesses who signed the seizure memo had turned hostile. As regards the conviction of the 2nd appellant Kallu, the Court noted inconsistencies between the complainant’s version and the IO’s version. Again, Kallu’s conviction suffered from infirmity of lack of corroboration from the seizure witnesses. Accordingly, the convictions were overturned.

[S. Ravindra Bhat J, Dipankar Dutta J]

[Keywords: disclosure statements, corroborative evidence, conspiracy, fact discovered]

In Mina Pun v. State of Uttar Pradesh, the Supreme Court overturned the conviction of the appellants, as confirmed by the High Court, under 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The case involved the seizure of contraband from the body of the accused pursuant to a body check. The Court found that the safeguards prescribed under Section 50 of the Act have not been complied with, despite the State asserting that the body search was voluntary. The Court observed, based on the consent memo for the search, that the accused-appellants have not been informed of their right to have a body search in the presence of a magistrate or a gazetted officer. As such, the Court proceeded to acquit the appellants.

[Abhay S. Oka J, Pankaj Mithal J]

[Keywords: Body search, voluntary, mandatory safeguards]

In Riya Bawri Etc. v. Mark Alexander Davidson, the respondents were the tenants of the appellant’s property and were accused under the extant provisions of the Negotiable Instruments Act when 22 cheques issued by the respondent no.3 firm in favour of the appellant were dishonoured for insufficient funds. In the High Court, the respondent no.1 had taken a ground that the subject cheques were issued between April to October 2019, whereas he has discontinued being a partner of respondent no.3 firm since April 1, 2018. In support whereof, a retirement deed dated April 1, 2018 was furnished by respondent no.1. The said submission was accepted by the High Court while quashing the summoning order and criminal complaint against respondent no.1. The Court held that the contents of the retirement deed dated April 1, 2018 is a matter of evidence. The Court, while reiterating that powers under Section 482 of the Criminal Procedure Code must be exercised only in the face of unimpeachable/incontrovertible evidence, proceeded to set aside the High Court’s order and revived the appellant’s complaints.

[Hima Kohli J, Rajesh Bindal J]

[Keywords: unimpeachable or incontrovertible evidence, disputed questions of fact, matter of evidence]

In Irfan @ Naka v. State of Uttar Pradesh, the appellant approached the Supreme Court challenging his conviction and death sentence by the High Court for offences under Section 302 read with Sections 436 and 326-A of the Indian Penal Code. The accused shared animosity with family members who objected to his second-marriage and had a strained relationship with the deceased who were his family members. On the night of the incident, he was staying in the same house as the three deceased persons and two other family members who subsequently became the prosecution’s witnesses. The appellant was accused of setting fire using kerosene to a room where the three deceased were sleeping, locking their room from the outside and running away. The trial court and High Court held that there was no inconsistency in the prosecution’s case and that it had succeeded in establishing the appellant’s guilt beyond reasonable doubt, as two of the deceased named the appellant. However, the Supreme Court, on an examination of the dying declarations of the two deceased as well as the oral testimonies, found a crucial inconsistency which the prosecution failed to address. The Court held that it is unsafe to convict the accused on the strength of the dying declaration when suspicion is raised regarding the correctness, as it was found that the deceased could not have known who had set fire to the room. Holding thus, the Court proceeded to acquit the appellant.

[B.R Gavai J, J.B Pardiwala J, Prashant Kumar Mishra J]

[Keywords: suspicion, proof, inherent weakness of dying declarations, weight of dying declaration, conviction based on circumstantial evidence, inspire confidence]

In Bhagwan Singh v. Dilip Kumar @ Deepu and Anr., the question pertained to the legality of bail granted to the accused for offences under Sections 376D, 384, and 506 of the IPC, Section 326 of the POCSO Act, Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 and Section 66 of the IT Act, 2000.  While relying on Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528, the Court reiterated the indicative parameters to be considered before granting bail, that is:

a) Nature of accusations and severity of punishment;

b) Reasonable apprehensions of witnesses or evidence being tampered with or threats to the complainant;

c) Prima facie satisfaction of the court in support of the charge;

d) Frivolity of prosecution.

Setting aside the High Court judgments, on facts, the Court held that a delay of 13 months in lodging the FIR was not fatal to the case of the prosecution considering the constant threat posed by the accused persons as stated in the complaint itself, and the complainant being 15 years old. It was further held that the fact that the trial court framed charges discloses the possibility and reasonable suspicion of the prima facie culpability of the accused.

[S. Ravindra Bhat, J., Aravind Kumar J.]

[Keywords : gang rape, threat of making video viral, extortion, Information Technology Act, grounds for bail, Section 439 Cr.P.C., delay in lodging FIR]

In Niranjan Das @ Niru Das @ Mahanto v. The State of West Bengal, the Supreme Court held that where an advocate was appointed by the legal services authority, such advocate ought to be given reasonable time to go through the files and assist the court. It would be insufficient if the advocate was not given time and she merely adopted the submissions of the co-accused. The Court set aside a conviction under Section 302, IPC on this ground.

[Abhay S Oka J., Pankaj Mittal J.]

[Keywords: S. 302 IPC, Legal Aid, constitutional rights]

In State of Punjb v. Shikha Trading Co, the Supreme Court held that where multiple clerks work in a department and make entries in the dispatch register, variations in ink and handwriting were bound to happen. Where all entries were made in seriatim and there was no overwriting, no question of interpolation or tampering could said to have arisen. Thus, the Court held that there was no reason to hold that the officer had ante-dated communication. Since the officer was not made a party to the dispute, the Court also expunged adverse directions and remarks made against an officer by the High Court.  

[Abhay S Oka J., Sanjay Karol J.]

[Keywords: direction to register a criminal case against an officer of the state, writ petition, Department of Excise and Taxation, illegal sealing of shop, infractions of the Punjab Value Added Tax Act 2005]

In Zunaid v. State of UP, the Supreme Court reiterated that a magistrate is not debarred from taking cognizance of a complaint merely because he had declined to take cognizance of the police report.

[Bela Trivedi J., Dipankar Datta J.]

[Keywords: S. 482 CrPC, protest petition, S. 200 and 202 CrPC, Rakesh v. State of UP (2014) 13 SCC 133]

In Satbir Singh v. State of Haryana, the Supreme Court noted that during the initial deposition, there was no opportunity to bring the relevant facts relating to the similarity of data before the court which only arose at a later point when the CFSL report was examined. The Court, therefore, permitted the re-examination of a witness.

[Ahsanuddin Amanullah J., SVN Bhatti J.]

[Keywords: recall of witness for further examination, S. 311 CrPC, ]

In Central Bureau of Investigation v. Narottam Dhakad, the Court held that Section 272, CrPC applies only to language of the courts under the CrPC and not the language to be used by the investigating agencies. Therefore, the non-supply of a translation of the charge sheet and other documents to the accused would not amount to a failure of justice, the Court said.

[Abhay S Oka J., Rajesh Bindal J.]

[Keywords: S. 272 CrPC, charge sheet, language to be used in the chargesheet]

In Rajo @ Rajwa @ Rajendra Mandal v. The State of Bihar, the Court held that the failure to exercise the discretionary right under Section 432 of the CrPC in fair, reasonable and non-arbitrary manner would invite the exercise of judicial review. Where the adverse report of the presiding judge in the first round was perfunctorily relied upon in the subsequent report, the decision to reject a second remission application  was incorrect, the Court said while directing a the remission application to be considered afresh.

[S Ravindra Bhat J., Prashant Kumar Mishra J.]

[Keywords; S. 302, 34 of the IPC, S. 27 of the Arms Act 1959, Art. 32, custody without grant of remission or parole for 24 years, S. 432(1) of the CrPC]

Service Law and Labour Law

In Central Council for Research in Ayurvedic Sciences and Anr. v. Bikartan Das and Ors., the challenge was to the judgment of the High Court that had set aside the order passed by the CAT, and held respondent no. 1, a research assistant, entitled to the benefit of enhancement of retirement age from 60 to 65 years as applicable to AYUSH doctors working under the Ministry of AYUSH. Relying on several judgments including New Okhla Industrial Development Authority v. BD Singhal (AIR 2021 SC 3457), the Supreme Court held that the age of superannuation was always governed by the statutory rules governing appointment on a particular post, and even if it is averred that the nature of work involved in the two posts is similar, the same cannot be a ground to increase or alter the service conditions of an employee. It was further held that in the exercise of the jurisdiction under Article 226, the High Court ought not to rehear the case on evidence and substitute its own findings in certiorari. The order of the High Court was, thus, set aside.

[D.Y. Chandrachud CJI., JB Pardiwala J.]

[Keywords : Ayush doctors, enhancement of retirement age, disjunctive and conjunctive, scope of power under Article 226, certiorari, jurisdictional error, error apparent]

In Devesh Sharma v. Union of India, the validity of the notification dated June 28, 2018, issued by the National Council for Teacher Education “NCTE” was assailed. The notification allowed  B.Ed graduates to compete with holders of Diploma in Elementary Education “D.El.Ed” for the posts of teachers for primary levels in government schools. The Court observed that B.Ed graduates are ill-suited for the post of primary level teachers in line with a catena of judgments on the issue. Further, the conditions giving rise to the notification dated June 28, 2018, were analysed. The Supreme Court found that the NCTE was not justified in including B.Ed as a criteria for qualification when the course does not embrace the pedagogical requirements for the primary level, and that it defeats the objective of providing quality education under the Right to Education Act. The Court reasoned that despite being a policy decision, the instant case warranted interference since the NCTE’s notification to include B.Ed graduates was without any justification and against the provisions of the RTE Act. Consequently, the notification was quashed.

[Aniruddha Bose J, Sudhanshu Dhulia J]

[Keywords: arbitrary, procedural impropriety, pedagogy, independent decision, judicial review of policy decision]

In State of West Bengal v. Mitul Kumar Jana, the State came in appeal before the Supreme Court challenging the High Court’s direction to appoint the respondent as a constable in the police force. The respondent was declared eligible for the post after passing the tests. However, it was alleged by the appellant (West Bengal authorities) that the respondent suppressed material information pertaining to his involvement in a sub-judice criminal trial as an accused while answering the questions in the verification roll. The West Bengal Administrative Tribunal found that there was no suppression since the language of the question in the verification roll was vague and did not require the respondent to disclose the pending criminal case. All the same, the tribunal did not grant the relief of appointment, noting that the discretion rests with the employer, pending the outcome of the trial. The High Court set aside the tribunal’s order and directed the appellant to appoint the respondent. The Supreme Court affirmed the view that there was no suppression of material facts by the respondent. However, it was noted that appellant’s discretion to appoint the respondent cannot be taken away by the High Court. Noting that the respondent was eventually acquitted in the criminal case, the Court issued directions to the appellant to judiciously exercise its discretion to decide on the appointment.

[J.K Maheshwari J, K.V Viswanathan J]

[Keywords: suppression of material information, judicious exercise of discretion, presumption of innocence, response to vague question]

In Smt. Dulu Deka v. State of Assam, the appellant claimed to be a teacher rendering her services as an assistant teacher in Bengabari M.E School since 2001. She claimed that she was appointed to the position pursuant to an advertisement issued in 1996 by the D.E. Assam. The Selection Committee recommended the appellant’s name from Udalguri constituency. Subsequently, the appellant was appointed as the assistant teacher for a salary of ₹ 2,000 vide order dated March 12, 2001 by the D.E.O., Mangaldoi Darrang upto March 31, 2002. The State contended that the appellant’s appointment was non-est as the D.E.O of Mangaldoi Darrang could not have appointed the appellant as her qualification stems from the Udalguri constituency as per the Selection Committee. The Court found that all the appointments made by D.E.O of Mangaldoi, Darrang were made against non-existent posts and were declared to be illegal by the Director of Elementary education. With respect to the appellant’s appointment at Bengabari, it was found that Bengabari falls in Udalguri constituency and that no appointment order from the D.E.O of Udalguri was on record. Once it was held that the appellant’s appointment was illegal, no legal right accrues with respect to claim for salary for the service period beyond March 31, 2002, the Court said. By holding so, the appeal was dismissed.

[Hima Kohli J, Rajesh Bindal J]

[Keywords: illegal appointment, void ab initio, salary]

In ESI Corporation v. M/s Endocrinology and Immunology Lab, the question that arose before the Supreme Court is the correct date from which the respondent, an endocrinology lab, was amenable to the rigours of Section 1 (5) Employees’ State Insurance Act, 1948 read with the notifications issued by the Kerala government from time to time. On facts, the appellant (ESI Corporation) issued a show-cause notice to the respondent (the lab) in 1999 for the alleged violation of the ESI Act, while running an establishment of 19 employees. The appellant moved the ESI Court which held that the respondent was a shop.  The ESI Court’s findings were reversed by the High Court which held that the notification which brought Medical Institutions under the purview of the 1948 Act was not issued until September 6, 2007. Upon careful consideration of the extant notifications issued by the Kerala Government since 1976, the Supreme Court came to the conclusion that the High Court’s order did not require interference. 

[Hima Kohli J, Rajesh Bindal J]

[Keywords: Employees State Insurance Corporation, Shop, medical institutions]

In Dariyao Kanwar v. United India Insurance Co. Ltd, the appellants challenged the judgment of the High Court, which had reversed an award by the Commissioner under Workmen’s Compensation Act, 1923 by which a compensation of ₹ 3,26,140/- was awarded to the kin of a deceased truck driver. The deceased workman was employed as a truck driver with the respondent no.2 owner, who was posted on duty for driving a truck from Delhi to Baroda on the date of incident. On September 15, 2003, the deceased felt uneasy and parked his vehicle after which he fainted and expired while being taken to the hospital. The forensic report ruled out the presence of any poisonous/intoxicating substances in the blood. The commissioner awarded compensation in favour of the appellants, noting that the Insurance Policy issued by the respondent no.1 insurance company was for the period between June 30, 2003 to June 29, 2004. Additional premium was paid to cover any compensation payable to two employees under the 1923 Act. However, the High Court rule in favour of the respondent no.1’s/ insurance company's contention that the death was not attributable to any accident, nor did it occur in the course of employment. Noting that the Judgment of the Court in Param Pal Singh Through Father v. National Insurance Co. & Anr., (2013) 3 SCC 409 squarely covers the issue, the Supreme Court negated the insurance company's contention and allowed the appeal.

[Hima Kohli J, Rajesh Bindal J]

[Keywords: Course of employment, out of employment, stress during employment]

In Dev Gupta v. PEC University of Technology & Ors., the bench held that it was of the considered opinion that the objective of introducing the sports quota, that is, 2% of intake, was to promote and encourage those who excelled and gained a certain degree of prescribed proficiency and achievement in defined competitive sports. The quota was introduced to promote sports, and sportsmanship in educational institutions. It was further observed that since the objective of introducing sports quota, was not to accommodate academic merit, but something altogether different: promotion of sports in the institution, the university, and ultimately, in the country, the exclusion of the petitioner and other like candidates on the ground of their securing less than 75% in the qualifying examination was unwarranted and discriminatory.

[S Ravindra Bhat J., Aravind Kumar J.]

[Keywords: sports quota, right to equality, Article 15(4) of the Constitution of India]

In Dr Prakasan MP v. State of Kerala, the Court held that it was for the State to determine whether the age of superannuation for a set of employees is to be extended and whether such extension should be retrospective or not.

[Hima Kohli J., Rajesh Bindal J.]

[Keywords: Enhancement of retirement age]

In Jagpal Singh v. the State of UP, the Court held that where a termination order was final and conclusive and the employee had been allowed to continue on the basis of an interim order (on appeal), the person may not claim any promotion entitlement due to such continuance of service.

[Abhay S Oka J., Pankaj Mithal J.]

[Keywords: finality of termination, interim stay]

In Hind Filters Ltd. V. Hind Filter Employees’ Union, the Court held that per the Industrial Disputes Act, the jurisdiction over a dispute that pertains primarily to the wages and allowance affecting more than 100 workmen exclusively fell within that of the Industrial Tribunal and that where documents had not been placed earlier, the Supreme Court could remand the matter back to the Industrial Tribunal.

[Hima Kohli J., Rajesh Bindal J.]

[Keywords: writ, Industrial Disputes Act 1947, retrenchment, labour commissioner]

Constitutional Law

In Union of India v. K. Pushpavanam & Ors, the Supreme Court took exception to a judgment passed by the Madras High Court in allowing a petition for a writ of mandamus filed by the first respondent, who had sought directions from the court to the Central Government to consider the codification of the law on torts and State liability. The High Court had issued five directions to the Central government, including a direction to consider the introduction of a bill on tort law within six months, and to make the Law Commission either a constitutional or statutory body. The High Court had also called for the allocation of funds, the appointment of members and appointment of nodal officers in various department to aid policymaking. The Supreme Court reiterated the first principles governing the issue of a mandamus and held that writ courts cannot direct the legislature to introduce a particular bill in a particular manner within a timeframe. Consequently, the High Court judgment was modified, and the directions were reframed as recommendations to the Central Government.

[Abhay S. Oka J, Sanjay Karol J]

[Keywords: Writ of Mandamus, direction to legislate, Torts and State Liability, constitution of Law Commission]

In M/s Om Gurusai Construction Co. Ltd v. M/s V.N Reddy & Ors, a plea was filed challenging the High Court’s decision to quash the award of a tender awarded to the appellant. The High Court order followed a writ petition filed by a private entity. It was alleged before the High Court that there was non-compliance of a mandatory tender condition in the award of the tender to the appellant. Noting that there were supervening conditions that prevented timely compliance by the appellant, the Court proceeded to lay down the rule that the author of tender documents is the best person to appreciate its requirements, to which Constitutional courts must defer. Having not found any mala fides in the decision-making process of the tendering authority, the Court observed that the High Court ought not to have interfered with the award on the basis of a rigid interpretation of the conditions.

[J.K Maheshwari J, K.V.Viswanathan J]

[Keywords: interpretation of the tender requirements, mala fides, perversity, mandatory condition, rigid interpretation]

Miscellaneous

In State of Rajasthan v. Sharwan Kumar Kumawat, the Supreme Court held that there is no vested right over an application which is pending seeking the lease of government land or the minerals beneath the same.  Where the government introduces fair play by way of auction, no one may claim legitimate expectations basis a pending application.

[AS Bopanna J., MM Sundresh J.]

[Keywords: Rule 4(10) and 7(3) of the Rajasthan Minor Mineral Concession Rules 1986, preferential rule]

In Nirmala Devi v. State of Himachal Pradesh, the Court modified a murder conviction to one of culpable homicide not amounting to murder on finding that the murder weapon was a stick lying in the house, which was not a deadly weapon, and since it was possible that the accused used the stick after provocation.

[BR Gavai J., JB Pardiwala]

[Keywords: S. 201 and 302 IPC]

In Kishan Chand Jain v. Union of India, the Court directed the Central and State Information Commissions to continuously monitor the implementation of the mandate of Section 4 of the RTI Act and as prescribed by the DoPT in its guidelines and memos.

[DY Chandrachud, J., PS Narasimha J., JB Pardiwala J.]

[Keywords: RTI, Article 32, PIL]

Taxation Law

In Secundrabad Club v. CIT-V, the Court held that the triple test for the principle of mutuality was:

i. The identity of the contributors with and recipients of the common fund;

ii. Status of the association or company as an instrument obedient to the mandate of its members; and

iii. The absence of possibility for contributors of the fund to derive profits from contributions made by them.

The Court also held that an order passed without any reasoning and rationale would not be binding precedent. 

[Nagarathna J., Prashant Kumar Mishra]

[Keywords: Gymkhana clubs, taxation of deposit of surplus funds, principle of mutuality, Income Tax Act 1961, doctrine of merger]

Election Law

In Thangjam Arunkumar v. Yumkham Erabot Singh, the appellant, who was a returned candidate challenged the High Court’s judgment dismissing his application under Order 7 Rule 11 of the Civil Procedure Code in an Election Petition filed by the respondent challenging the appellant’s election on grounds of corruption under the Representation of People’s Act. The grounds taken by the appellant in his application for rejection of the plaint, inter alia, included the ground that the respondent did not file a Form-25 Affidavit in support of his election petition, as required under Section 83(1)(c) read with Rule 94A of the Conduct of Election Rules, 1961. Upon recording the respondent’s submission that pursuant to the Court’s judgment in GM Siddeshwar v. Prasanna Kumar and A. Manju v. Prajwal Revanna wherein it was held that the non-filing of an affidavit under Form-25 is a curable defect, the Supreme Court held that the said requirement was non-mandatory. Further, the Court observed that there was substantial compliance as per the verification affidavit accompanying the petition. Holding thus, the appeal was dismissed.

[D.Y Chandrachud CJ, P.S Narasimha J]

[Keywords: curable defect, substantial compliance, rejection of plaint]

In Dharmin Bai Kashyap v. Babli Sahu and Ors., a question arose as to whether an election petition filed by the petitioner before the sub divisional officer seeking relief of recounting of votes alone, without seeking any relief under Rule 6 of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification of Membership) Rules, 1995, was maintainable? Rule 6 laid down that the petitioner may claim a declaration that the election of all or any of the returned candidates is void; and a further declaration that he himself or any other candidate has been duly elected. It was held that in view of Rule 6, in an election petition filed under Section 122 of the Act, the reliefs claimed have to be in consonance with the said Rule 6 of the Rules of 1995. The petitioner having failed to do that, the election petition filed by her seeking relief of recounting of votes was held to be not maintainable.

[SVN Bhatti J., Bela M. Trivedi J.]

[Keywords : Election Petition, recounting of votes, Sub Divisional Officer, strict construction of election statutes, returning officer, Nirvachan Niyam, 1995]

Preventive Detention

Pesala Nookaraju v. The Government of Andhra Pradesh and Ors. concerned an appeal by a detenu, preventively detained under Section 3(2) of the Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986. The Court held that the period of three months specified in Article 22(4)(a) of the Constitution of India is relatable to the period of detention prior to the report of the Advisory Board, and not to the period of detention subsequent thereto. However, under Article 22(4)(a), the Advisory Board would have to give its opinion within a period of three months from the date of detention, and depending on the opinion so expressed, the State Government can either confirm the order of detention or continue the detention for a maximum period of twelve months. Dismissing the appeal, on facts, it was held that the detaining authority had specifically stated in the grounds of detention that selling liquor by the detenu and consumption by the local people was harmful to their health and that such statement was an expression of his subjective satisfaction that the activities of the detenu is prejudicial to the maintenance of public order.

[Dr. Dhananjaya Y. Chandrachud CJI., Manoj Misra., JB Pardiwala J.]

[Keywords : preventive detention, freedom]

Service Tax Law

In Commissioner of Service Tax (II), Mumbai v. M/s 3I Infotech Ltd, the Supreme Court affirmed that an adjudication of the show cause notice must be made only on the basis of the classification stated in the show cause notice. Of the four notices in issue, the first notice pertained to Financial Year (FY) 2004-05 to FY 2008-09. The original order found that the classification of services for the first show cause notice ought to have been “Intellectual Property Service” and not “Maintenance and Repair.” The CESTAT further held that the first show cause notice was unjustified. For the remaining three show cause notices, a limited order of remand was passed. Upon the perusal of the amendments to Finance Act of 2008, the Court found that the classification of service for FY 2004-05 to 2008-09 under the head “Maintenance and Repair” was incorrect as per the law prior to May 16, 2008, since the services rendered by the assessee fell under the category of “Intellectual Property Services”. The other show-cause notices were found to be issued under the correct classification. Hence, both the cross-appeals filed by the Revenue for the first notice and the assessee for the other notices were dismissed with directions.

[Abhay S. Oka J, Sanjay Karol J]

[Keywords: erroneous category of service, Information Technology Software, Intellectual Property Service, Maintenance and repair, basis of adjudication. Finance Act]

Insurance and Compensation Law

In SS Cold Storage India Pvt. Ltd. v. National Insurance Company Ltd., the challenge was to the dismissal of an original complaint by the NCDRC on the ground that there was no deficiency in service on the part of the respondent. The case concerned multiple surveyor reports on the reason for cracks in pipes, leading to the leakage of ammonia gas and eventually the closure of the cold storage facility of the appellant. The Court frowned upon the action of NCDRC in acting as experts and sitting in appeal over the surveyor reports, selectively relying on certain portions thereof while rejecting the rest. The Court held that repudiation of the insurance claim by the respondent (insurance company) amounted to a deficiency of service on its part, and directed the payment of ₹ 2.25 crore towards full and final settlement.

[AS Bopanna J., Dipankar Datta J.]

[Keywords : Insurance claim, repudiation, deficiency of service, Section 23 Consumer Protection Act, Surveyor Report, expert reports]

About the authors: Subhro Prokas Mukherjee, Sahil Tagotra, Abhinav Hansaraman and Venkata Supreeth K are advocates mainly practicing in Delhi at the Supreme Court of India.

Related Stories

No stories found.