The Supreme Court fortnightly: 15 important judgments - February 15 to 28, 2023

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 February 2023..1. Reducing cut-off marks after publishing results to accommodate ineligible candidates violates Article 14Case Title: Sureshkumar Lalitkumar Patel and Others v. State of Gujarat and OthersA division bench of Justices Sanjiv Khanna and MM Sundresh held that reducing the cut-off marks after the publication of results only for the purpose of accommodating otherwise ineligible candidates, violates Article 14 (equality before law) of the Constitution.The Court, therefore, disapproved the decision of a departmental selection committee in Gujarat to reduce the qualifying marks for the post of Supervisor Instructor Class III after the publication of results.When informed that this was done to facilitate the appointment of candidates belonging to a special category comprising women, persons with disabilities and former members of the armed forces, the Court observed,"Fixing cut-off marks for a particular category has got a rationale behind it. Reducing it only for the purpose of providing employment to a particular category, when the others have already acquired some right would be an affront to Article 14 of the Constitution of India."The Court found that the decision to reduce the cut-off, in this case, was not based on any objective criteria or the suitability of the candidate, but for extraneous reasons, "to accommodate otherwise ineligible candidates.".2. DGP cannot be compelled to reinstate person in police force on acquittal in criminal caseCase Title: Imtiyaz Ahmad Malla v. State of Jammu and Kashmir and OthersA division bench of Justices Ajay Rastogi and Bela M Trivedi held that a person's acquittal in a criminal case does not entitle them to reinstatement in service.The Court agreed with the view of the Jammu & Kashmir High Court that the Director General of Police (DGP) is the best judge to determine the suitability of a candidate for induction into the police force.The top court relied on its decision in Union Territory, Chandigarh Administration And Others v. Pradeep Kumar And Another (2018), wherein it was observed that the acquittal in a criminal case is not conclusive of the suitability of a candidate for a post. Further, if a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or that he had no criminal antecedents.Considering the above precedent, the Court upheld the High Court judgment and said,"The High Court in the impugned judgement has also elaborately dealt with each and every aspect of the issues involved, while upholding the order of the Single Bench to the effect that the Director General being the highest functionary in the police hierarchy, was the best judge to consider the suitability of the petitioner for induction into the police force. The impugned order being just and proper, we are not inclined to interfere with the same in exercise of our jurisdiction under Article 136 of the Constitution of India.".3. Extra-judicial confession is weak evidence especially when retracted during trialCase Title: Indrajit Das v. State of TripuraA division bench of Justices BR Gavai and Vikram Nath said that an extra-judicial confession is a weak piece of evidence especially when it has been retracted during the trial.The Court stated that an extra-judicial confession requires strong evidence to corroborate it for it to be relied on in criminal cases."The extra-judicial confession is a weak piece of evidence and especially when it has been retracted during trial. It requires strong evidence to corroborate it and also it must be established that it was completely voluntary and truthful," the judgment said.The Court made the observation while setting aside the conviction of a man for the alleged murder of his friend.It was further observed that since the extra-judicial confession itself had not been corroborated and since the evidence led by the prosecution appeared to be inconsistent with the confession, the Court proceeded to acquit the appellant..4. High Courts common for States can order inter-State transfer of civil proceedingsCase Title: Shah Newaz Khan and Others v. State of Nagaland and OthersA division bench of Justices Hrishikesh Roy and Dipankar Datta held that a High Court can order inter-State transfer of civil proceedings, provided such Court has jurisdiction over the States concerned.The Court found that the power under Section 24 of Civil Procedure Code (CPC) (general power of transfer and withdrawal), can be exercised by a High Court for the inter-State transfer of a civil suit, appeal or other proceedings, if it is the common High Court for all the States concerned."The power under section 24 of the CPC can be exercised by the High Court even for inter-State transfer of a suit, appeal or other proceeding, if it is the common High Court for two or more States under Article 231 of the Constitution and both the Civil Courts (transferor and transferee) are subordinate to it," the judgment stated.The bench clarified that the Supreme Court's powers under Section 25, CPC to transfer civil proceedings across States applies to a scenario where each State concerned has its own High Court in terms of Article 214 of the Constitution.Pertinently, the Court said that this power under Section 25 of CPC does not apply to a case where both States have a common High Court under Article 231 of the Constitution. Further, the Court was also prompted to remark that the High Court has wide-ranging powers which ought to be acknowledged by all..5. Provisions governing State aid have to be uniformly applied to minority and majority-run educational institutionsCase Title: State of Gujarat and Others v. HB Kapadia Education Trust and AnotherA division bench of Justices Dinesh Maheshwari and Bela M Trivedi held that statutory provisions governing the grant or non-grant of State aid to educational institutions have to be applied uniformly, regardless of whether it is a minority-run or a majority-run institution.The Court reiterated that the rights of minority institutions under Article 30 (rights of minorities to establish and administer educational institutions) of the Constitution of India are not absolute and not above the law."As held by the Constitution Bench in case of TMA Pai Foundation and Others vs. State of Karnataka and Others, the right under Article 30(1) is not an absolute right above the law, and that the provisions for the grant or non-grant in aid to the educational institutions, whether it is majority-run institution or a minority-run institution, have to be uniformly applied," the Court said.In the case at hand, it was found that the Grant-in-Aid Code for Secondary Schools, 1964 applicable to the minority school before the Court did not allow the extension of the tenure of the principal beyond the age of 58 years normally, or beyond 60 years of age, in any case.The Court ruled that if this condition is breached, the minority institution cannot then continue to claim grants in aid from the State."If an employee or a teacher is continued in service by the management of any registered minority Secondary School receiving Grant-in-Aid from the State-Government, then such school would not be entitled to receive any grant in respect of the expenditure incurred for continuing such employee or teacher beyond the age of 58 or 60 years, as the case may be," the judgment stated..6. Cheque bounce cases under Section 138 NI Act can be transferred from one State to another under Section 406 CrPCCase Title: Yogesh Upadhyay and Another v. Atlanta LimitedA division bench of Justices Dinesh Maheshwari and Sanjay Kumar ruled that its power to transfer criminal cases under Section 406 of the Code of Criminal Procedure (CrPC) remains intact in relation to cheque dishonour cases under Section 138 of the Negotiable Instruments Act (NI Act).The bench rejected the contention that it would be impermissible for the Court to transfer such cases on account of a non-obstante clause in Section 142(1) of the NI Act overriding Section 406 of CrPC."Notwithstanding the non-obstante clause in Section 142(1) of the Act of 1881, the power of this Court to transfer criminal cases under Section 406 Cr.P.C. remains intact in relation to offences under Section 138 of the Act of 1881, if it is found expedient for the ends of justice," the Court observed.The Court was of the opinion that an argument that the non-obstante clause in Section 142 of NI Act overrides Section 406 of CrPC cannot be accepted."The said clause merely has reference to the manner in which cognizance is to be taken in offences under Section 138 of the Act of 1881, as a departure has to be made from the usual procedure inasmuch as prosecution for the said offence stands postponed despite commission of the offence being complete upon dishonour of the cheque and it must necessarily be in terms of the procedure prescribed," the Court explained.The 'notwithstanding' clause under Section 142 of the NI Act has to be read and understood in the context and for the purpose it is used, the Court said.This clause does not lend itself to the interpretation that Section 406, CrPC would stand excluded vis-à-vis offences under Section 138 of the NI Act, the bench held."The power of this Court to transfer pending criminal proceedings under Section 406 Cr.P.C. does not stand abrogated thereby in respect of offences under Section 138 of the Act of 1881," the judgment stated..7. More than prima facie case necessary to summon additional accused under Section 319 CrPCCase Title: Juhru and Others v. Karim and AnotherA division bench of Justices Surya Kant and JK Maheshwari observed that the power to summon additional accused under Section 319 of the Code of Criminal Procedure 1973 (CrPC) must not be exercised routinely and that the existence of more than a prima facie case is necessary to order for the same.The Court said that such a requirement is sine qua non to summon persons under Section 319, CrPC.It also added that certain procedural safeguards should be adopted to prevent the frequent misuse of this Section."... the procedural safeguard can be that ordinarily the summoning of a person at the very threshold of the trial may be discouraged and the trial court must evaluate the evidence against the persons sought to be summoned and then adjudge whether such material is, more or less, carry the same weightage and value as has been testified against those who are already facing trial. In the absence of any credible evidence, the power under Section 319 Cr.P.C. ought not to be invoked," the Court said.The Court added that the trial court must follow the guidelines as laid down in Sukhpal Singh Khaira v. The State of Punjab while proceeding with the trial after summoning the father-in-law..8. Tenure as ad-hoc judges not counted to determine seniority, elevation to High CourtCase Title: C Yamini and ors vs High Court of Andhra Pradesh at Amaravathi and AnotherA division bench of Justices Ajay Rastogi and Bela M Trivedi observed that time served by a judicial officer as an ad-hoc judge will not be considered to determine seniority and, consequently, elevation to High Court.The Court observed that the issue was settled in an earlier Supreme Court decision in Kum C. Yamini v. The State of Andhra Pradesh & Another.In that judgment, the Supreme Court had held that judicial officers are not entitled to claim the benefit of seniority from the date of their initial appointment as ad hoc judges.Further, the Supreme Court had observed that such service as ad hoc judges would only be factored in for the purpose of pensionary and other retiral benefits.Therefore, the bench dismissed a plea by nine judicial officers who were aggrieved by the non-consideration of their service as ad-hoc judges in deciding on elevations of judges to the Andhra Pradesh High Court..9. NGT has power to execute its orders as decrees of civil courtCase Title: Sushil Raghav v. Union of India and OthersA three-judge bench of Chief Justice of India DY Chandrachud, and Justices PS Narasimha and JB Pardiwala observed that the National Green Tribunal (NGT) has power to execute its orders as decrees of a civil court under Section 25 of the NGT Act, 2010.The Court explained that the NGT is entrusted with sufficient powers to ensure that its orders are complied with."The Tribunal is entrusted with the wholesome power to ensure that its orders are complied with," the Court's order stated.Referring to the case at hand, the Supreme Court held:"We are of the considered view that the observation of the Tribunal that there was no case for executing the earlier order under Section 25 is misconceived. The Tribunal is entrusted with the wholesome power to ensure that its orders are complied with.".10. Different pay scales for seemingly similar posts justified if there is reasonable classificationCase Title: Union of India v. Indian Navy Civilian Design Officers Association and AnotherA division bench of Justices Ajay Rastogi and Bela M Trivedi held that the State would be justified in prescribing different pay scales for the seemingly similar posts if such classification of posts and determination of pay scale have reasonable nexus with the objective or purpose sought to be achieved.The Court said that even if the nature of the work appears to be similar with regard to two different posts, the pay commission can still recommend different pay scales to achieve the objective of efficiency in administration."It may be true that the nature of work involved in two posts may sometimes appear to be more or less similar, however, if the classification of posts and determination of pay scale have reasonable nexus with the objective or purpose sought to be achieved, namely, the efficiency in the administration, the Pay Commissions would be justified in recommending and the State would be justified in prescribing different pay scales for the seemingly similar posts," the Court said.Even though doctrine of 'equal pay for equal work' is not an abstract doctrine and is capable of being enforced in a court of law, the same has no mechanical application in every case, the bench added.“'Equal pay for equal work' is not an abstract doctrine and is capable of being enforced in a Court of Law, the equal pay must be for equal work of equal value," the Court said.The Court further observed that the complex matter of classifying posts and determining the pay structure was within the exclusive domain of the executive.The Court should only interfere when there is cogent material on record to conclude that a grave error had crept in while fixing the pay scale for a given post and that the interference of the Court was absolutely necessary to undo the injustice, the bench added. .11. If two views possible in cases seeking reversal of acquittal, view favoring accused should be adoptedCase Title: Roopwanti v. State of Haryana and OthersA division bench of Justices Krishna Murari and BV Nagarathna held that in cases of reversal of acquittal, where two views are possible, the view which favors the accused has to be adopted.The Court said that in such cases, courts must keep in mind that the presumption of innocence in favor of the accused would stand strengthened and fortified and the prosecution will have an even greater responsibility to reverse the presumption."In cases where a reversal of acquittal is sought, the courts must keep in mind that the presumption of innocence in favour of the accused, on grounds of it surviving the rigours of a full trial, is strengthened and stands fortified. The prosecution then, while still working under the same burden of proof, is required to discharge a more onerous responsibility to annul and reverse the fortified presumption of innocence. This fortification of the presumption of innocence has been held in a catena of judgments by this court," the bench stated..12. Court upholds Madras High Court order paving way for election of E Palaniswami as AIADMK headCase Title: Thiru K Palaniswamy v. M Shanmugam and OthersA division bench of Justices Dinesh Maheshwari and Hrishikesh Roy upheld a Madras High Court order setting aside the cancellation of the election of Edappadi K Palaniswami as interim General Secretary of the All India Anna Dravida Munnetra Kazhagam (AIADMK)."We have upheld the order of the Division Bench of the High Court dated 2.9.22, and made our earlier interim order permanent. We have not dealt with the matter of resolutions before the party that were being heard by the single-judge. We leave it open for the said resolutions to be dealt with in accordance in law. We do not seek it necessary to allow the impleadment applications," the Court said.The Court stated that its interim order passed on July 6 last year, which stayed a High Court order restraining amendment to the AIADMK by-laws, would be made absolute.The Madras High Court order that was upheld had set aside a single-judge order that had, in effect, quashed the appointment of Edapaddi K Palaniswamy as interim general secretary.The top court, with reference to the latter, made it clear that," ... questions of balance of convenience and irreparable injury in relation to the applications under consideration could not have been examined with reference to the consequences or fallout of the meeting dated 11.07.2022. Moreover, the authority of the General Council to deal with the relevant matters could not have been brushed aside with reference to the strength of the primary membership of the party. It is but clear that the learned Single Judge has not kept in view the relevant tests as expounded in the decisions above-referred."Since the matter concerned the internal management of a political party, the balance of convenience could not have been in favour of granting any interim injunction on the Pannerselvam camp, it was explained.The petitions before Supreme Court also included an appeal by the O Panneerselvam camp against a division bench Madras High Court ruling that had upheld the resolution passed at the general council meeting expelling him and appointing Palaniswami as the interim General Secretary..13. Conviction under Section 498A IPC not sustainable when marriage between parties declared voidCase Title: P Sivakumar and Others v. State represented by the Deputy Superintendent of PoliceA division bench of Justices BR Gavai and Vikram Nath held that conviction of a husband and his relatives for cruelty to wife under Section 498A of the Indian Penal Code (IPC) would not be sustainable when the marriage between the parties to dispute had been declared null and void.The Court, therefore, acquitted the appellant-husband and his parents who were convicted by the Madras High Court Section 498A IPC and Sections 3 and 4 of the Dowry Prohibition Act of 1961.The Supreme Court agreed with the argument of the appellant that when the marriage had been declared null and void, there could be no conviction under Section 498A, IPC."Undisputedly, the marriage between the appellant No.1 and PW-1 has been found to be null and void. As such the conviction under Section 498-A IPC would not be sustainable in view of the judgment of this Court in the case Shivcharan Lal Verma's case," the Court said..14. When can DNA test be ordered to ascertain paternity of child? Supreme Court lays down guidelinesCase Title: Aparna Ajinkya Firodia v. Ajinkya Arun FirodiaA division bench of Justices BV Nagarathna and V Ramasubramanian held that DNA test in children to ascertain their paternity in matrimonial disputes, should be done only in exceptional cases when it becomes indispensable to resolve the controversy.The Court observed that the right of children to not have their legitimacy questioned frivolously is an essential attribute of their right to privacy."Children have the right not to have their legitimacy questioned frivolously before a Court of Law. This is an essential attribute of the right to privacy. Courts are therefore required to acknowledge that children are not to be regarded like material objects, and be subjected to forensic/DNA testing, particularly when they are not parties to the divorce proceeding. It is imperative that children do not become the focal point of the battle between spouses," the Court said.Hence, the Court laid down the factors to be considered while deciding the question of whether a DNA Test of a minor child should be ordered at the behest of either parent.The Court laid down the following principles of law dealing with the presumption of legitimacy of a child born during wedlock under section 112 of Evidence Act and the circumstances under which this presumption can be rebutted through evidence:(a) The object behind the presumption of legitimacy laid down under Section 112 qua a child born during the wedlock read with Section 4 of the Indian Evidence Act, 1872, is to prevent an unwarranted enquiry as to the paternity of the child whose parents at the relevant time had “access” to each other.(b) For rebutting the presumption of legitimacy under Section 112 of Indian Evidence Act, 1872, the party questioning the legitimacy of the minor child is required to prima facie show “non-access” to other party. Further, if no plea has been raised as to “non-access”, the DNA Test may not be directed.(c) That a direction to conduct a DNA Test of a minor child should be viewed from the prism of the child, keeping in mind the best interest of the child.(d) Such a direction should be ordered by the Court rarely, and only in exceptional and deserving cases, where such a test becomes indispensable to resolve the controversy.(e) An adverse inference under Section 114(h) of Evidence Act cannot be drawn against the petitioner-wife who in her capacity as mother and natural guardian is refusing the DNA Test of the minor child and is protecting the interest of the child..15. Mere filing of chargesheet and framing of charges no impediment in ordering further investigationCase Title: Anant Thanur Karmuse v. State of Maharashtra and OthersA division bench of Justices MR Shah and CT Ravikumar directed the Maharashtra government to further probe into the assault case against a civil engineer in which Nationalist Congress Party (NCP) leader Jitendra Ahwad is an accused."...the victim has a fundamental right of fair investigation and fair trial. Therefore, mere filing of the chargesheet and framing of the charges cannot be an impediment in ordering further investigation / re-investigation / de novo investigation, if the facts so warrant," the Court observed.While declining the prayer for a Central Bureau of Investigation (CBI) probe into the matter, the Court directed that its order be complied with within three months." ... a case is made out for further investigation and the State agency may be permitted to conduct a further investigation and to bring on record the further material, which may be in the furtherance of fair investigation and fair trial. The High Court has committed a very serious error in not ordering and/or permitting the State police agency to further investigate into the FIR bearing Nos. 119 and 120 of 2020. The High Court has not considered the relevant aspects narrated hereinabove and therefore interference of this Court is warranted," the judgment said.The bench also pointed out that further investigation could be carried out after a chargesheet has been filed, if the facts of a case necessitate so."If the submission on behalf of the accused and even as observed by the High Court that once the chargesheet is filed and the charges are framed, there may not be any order for further investigation / re-investigation / de novo investigation is accepted, in that case, the accused may see to it that the charges are framed to avoid any fair investigation / fair trial. It would lead to travesty of justice," the Court said. .1. Nominated members cannot vote for Delhi MCD pollsCase Title: Shelly Oberoi and Another v. Office of Lieutenant Governor of Delhi and OthersA three-judge bench of Chief Justice of India (CJI) DY Chandrachud and Justices PS Narasimha and JB Pardiwala ordered the Lieutenant Governor (LG) of Delhi Vinai Kumar Saxena to announce within 24 hours the date of the polls to elect the mayor of the Municipal Corporation of Delhi (MCD).Importantly, the Court made it clear that members nominated by the LG to the MCD cannot participate and vote in the polls to elect the mayor.The Bench passed the following directions:(i) At the first meeting of the Municipal Corporation of Delhi, the election shall be held first for the post of Mayor and at that election, the members who are nominated in terms of Section 3(3)(b)(i) of the Act shall not have the right to vote;(ii) Upon the election of the Mayor, the Mayor shall act as the presiding authority for conducting the election of the Deputy Mayor and the members of the Standing Committee at which also the prohibition on the exercise of vote by the nominated members in terms of Section 3(3)(b)(i) shall continue to operate; and(iii) The notice convening the first meeting of the Municipal Corporation of Delhi shall be issued within a period of twenty four hours. The notice shall fix the date for convening the first meeting at which the election of the Mayor, Deputy Mayor and members of the Standing Committee shall be conducted in terms of the above directions..2. Court grants interim bail to Congress spokesperson Pawan KheraCase Title: Pawan Khera v. State of Assam and AnotherA three-Judge bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah and PS Narasimha granted interim bail to Congress spokesperson Pawan Khera, booked by the Uttar Pradesh and Assam Police for botching up the name of Prime Minister Narendra Modi at a press conference.At a recently held press conference, Khera had botched up PM Narendra Modi's name while demanding a joint parliamentary probe into the Adani-Hindenburg row."If Narasimha Rao could form a JPC (Joint Parliamentary Committee), if Atal Bihari Vajpayee could form a JPC, then what problem does Narendra Gautam Das...sorry Damodardas Modi have?" Khera had said.Khera has been booked for offences under Section 153A (promoting enmity between different groups on grounds of religion, race, place of birth etc.) and Section 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the Indian Penal Code (IPC).Later, the Court had further extended Khera's bail while directing the concerned states to file their responses..3. Court issues fresh directions for implementing law prohibiting Manual ScavengingCase Title: Dr Balram Singh v. Union of India and OthersA division bench of Justices S Ravindra Bhat and Dipankar Datta issued directions towards implementation of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 and the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993.The following directions were issued to the Central government:(I) the respondent – Union shall place on record the steps taken pursuant to the judgment of this Court, viz.-a-viz. The Status of implementation of the 2013 Act i.e. Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, including the steps towards rehabilitation of such persons falling within the definition of ‘Manual Scavengers’.(II) Steps taken towards abolition/demolition of Dry Latrines, statewise.(III) Status of Dry Latrines and Safai Karamcharies in Cantonment Boards and Railways.(IV) Employment of Safai Karamcharies in Railways and Cantonments Boards whether directly or indirectly i.e. through Contractors or otherwise.(V) State-wise set up of Municipal Corporation and the nature of equipment (as well as the description of technical equipment), deployed by such bodies to mechanize sewage cleaning.(VI) The feasibility of developing internet based solutions for real time tracking of sewage deaths and action taken by their concerned authorities including the appropriate Government towards payment of compensation and rehabilitation of families..4. Court rejects plea against HC order that held poking finger at vagina not 'insertion' to attract penetrative sexual assaultCase Title: CV v. Lukose and AnotherA division bench of Justices BR Gavai and Sanjay Karol rejected an appeal against a Kerala High Court judgment that had held that poking one's finger at the vagina of a minor does not amount to the act of 'insertion' into private parts, to attract the offence of 'penetrative sexual assault' under the Protection of Children from Sexual Offences Act (POCSO Act).The High Court had in June 2020 modified the trial court's conviction of the accused from penetrative sexual assault to the lesser offence of sexual assault. The former offence carries a sentence of not less than ten years imprisonment, while the latter carries a three to five years imprisonment.The top court noted that the accused had already served his sentence, but kept open the question of law before rejecting the appeal."In the facts and circumstances of this case, we do not find any merit in this appeal. The appeal is, accordingly, dismissed ... However, the question of law is kept open," the Court said..5. Court grants interim relief to NEET Super Specialty students seeking to resign from DM/MCH/DNB seatsCase Title: Dr. Mayur CM and Others v. Union of IndiaA division bench of Justices BR Gavai and Manoj Mishra granted interim relief to NEET Super Specialty aspirants who had wished to resign from Doctorate of Medicine (DM), Master of Chirurgiae (MCh) and Diplomate of National Board (DNB) seats allocated to them.The Court allowed such post-graduate medical students to resign from the seats if they wished to.The interim order was passed on February 17 in a writ petition challenging restrictions on medical students from resigning from such seats once they were allotted as per a counseling scheme for the All India Quota for these NEET-Super Specialty courses. Eleven medical students have filed the said plea.The petition also challenged the penalty imposed by universities or colleges on NEET Super Specialty aspirants who resign from their seats.The Court, however, clarified that the question of whether such a penalty can be imposed, would be subject to the outcome of the case..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.