2017 SCC Vol. 3 March 28, 2017 Part 2

Armed Forces — Regularisation — Entitlement/Non-Entitlement: Considering that Porters in Indian Army engaged as casual labourers/daily-wage employees in border areas (high risk/highly active field areas having life-threatening conditions) work for long years as casual labours with little regard to safety and face disability, injury and even death, their families having no social security, directions issued to modify proposed scheme by Union Government for providing better working conditions and “related matters”. [Yash Pal v. Union of India, (2017) 3 SCC 272]

Civil Procedure Code, 1908 — Or. 1 Rr. 10, 3, 9 and 13 — Impleadment of necessary/proper party: For proper adjudication of the issue in suit for eviction from shop in which a partnership firm was carrying on business, both the firm and all its partners, though not necessary parties from the point of view of the eviction petitioners, should be on the array of parties as proper parties so as to facilitate the complete determination of the matter in dispute. Hence, their impleadment as proper parties to suit concerned ordered accordingly. [Richard Lee v. Girish Soni, (2017) 3 SCC 194]

Criminal Procedure Code, 1973 — S. 195 — Procedure prescribed under — Mandatory application of: Prosecution initiated under S. 182 IPC in absence of such procedure, is rendered void ab initio. [Saloni Arora v. State (NCT of Delhi), (2017) 3 SCC 286]

Criminal Procedure Code, 1973 — Ss. 397 and 228 — Scope of interference under S. 397, when charge has been framed: At the stage of framing of a charge, the court is concerned not with proof of allegation, rather it has to focus on material and form an opinion whether there is strong suspicion that accused has committed an offence, which if put to trial, could prove his guilt. Framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing charge, the court should form an opinion that accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of CrPC. Object of S. 397 is to set right a patent defect or an error of jurisdiction or law or perversity which has crept in the proceeding. Power of quashing criminal proceedings, particularly, charge framed in terms of S. 228 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. Court should apply the test as to whether uncontroverted allegations as made from record of case and documents submitted therewith, prima facie establish the offence or not. If allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied, then Court may interfere, but High Court should not unduly interfere. Quashing of a charge is an exception to the rule of continuous prosecution. Where offence is even broadly satisfied, Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. Court is not expected to marshal the records with a view to decide admissibility and reliability of documents or records. [State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198]

Criminal Trial — Appreciation of evidence — Medical evidence vis-à-vis ocular evidence: Minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by eyewitnesses, the testimony of eyewitnesses cannot be thrown out. [Baleshwar Mahto v. State of Bihar, (2017) 3 SCC 152]

Customs — Liability to Pay Customs Duty — “Import”/“Home consumption”: Repair of “foreign-going vessel” at a port in India, does not amount to a taxable import. Rig used for oilfield services operates outside the territorial waters of India and is brought to Indian port for repairs only, not exigible. Repairs undertaken on vessel (rig) does not fall with the ambit of “home consumption”. Repair of a vessel is not putting the vessel to use in India and does not result in home consumption when the vessel is not utilised within the territory of India. Repairs do not amount to utilization or operation of the vessel/rig in India. [Commr. of customs v. Aban Loyd Chiles Offshore Ltd., (2017) 3 SCC 211]

Excise — Manufacture/Manufacturing Process — Mixing of food flavours with Indian-Made Foreign Liquor (IMFL): “Manufacture” implies change, but every change is not manufacture. [CCE v. United Spirits Ltd., (2017) 3 SCC 166]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Considerations for Appointment of Guardian/Welfare of Child: Welfare comprehends optimal growth and development of personality of child. Optimal growth also serves larger public interest of national development as children are future of nation. When child is at stage of major shift in thinking process and shaping of an individual personality, deeper level of emotional care is needed for his/her mental stability and maturity. Psychologically, child-mother bonding is regarded as best for child’s wholesome development though this presumption is rebuttable. Right of child is based on individual dignity. Since as result of separation of parents, child falls in middle of contest of loyalty (Parental Alienation Syndrome) which has deleterious effects (psychological and even to some extent physical), intent of court should be to circumvent such effects. It behoves upon parents also to exhibit good behaviour and set positive and healthy examples before child. Negative approach adopted by any parent a significant factor weighing against him/her while considering grant of custody of child by court. [Vivek Singh v. Romani Singh, (2017) 3 SCC 231]

Juvenile Justice (Care and Protection of Children) Act, 2000 — S. 7-A — Claim of juvenility: Documentary evidence as contemplated in statutory provisions/Rules, enough to establish juvenility, if it is available and found to be reliable. There is no further need for medical examination in such a case. [Sri Ganesh v. State of T.N., (2017) 3 SCC 280]

Penal Code, 1860 — S. 302 or S. 304 Pt. I or S. 304 Pt. II and S. 300 Exception 4 — Requirements for invoking Exception 4 to S. 300: When and if there is intent and knowledge, then same would be a case of S. 304 Pt. I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of S. 304 Pt. II IPC. As in this case, injuries/incised wound caused on head i.e. right parietal region and right temporal region and also occipital region, of deceased, indicate that appellants had intention and knowledge to cause the injuries and thus it would be a case falling under S. 304 Pt. I IPC. Therefore, conviction of appellants under Ss. 302/34 IPC is modified to S. 304 Pt. I IPC. [Arjun v. State of Chhattisgarh, (2017) 3 SCC 247]

Penal Code, 1860 — S. 302 r/w Ss. 34/149, Ss. 324 & 325 r/w Ss. 34/149 and S. 326 r/w S. 149 — Essential ingredients of S. 149: Common object to commit offence can be inferred from weapons used and violent manner of attack but common object to commit murder cannot be inferred only on basis that weapons carried by accused were dangerous, a holistic view has to be taken of all the facts. Finding of commission of offence under S. 326 r/w S. 149 can be recorded against other members of an unlawful assembly, even if it is established that offence under S. 302 was committed by one or more member(s) of such assembly. [Najabhai Desurbhai Wagh v. Valerabhai Deganbhai Vagh, (2017) 3 SCC 261]

Practice and Procedure — Review — Recall: As High Court declined to entertain recall petition even though substantial grounds were made out, matter remanded to High Court for reconsideration. [Sushila Kumari v. Satish Chander, (2017) 3 SCC 257]

Rent Control and Eviction — Leave to Defend — Leave to defend/contest — Grant of leave to contest eviction proceedings: The Authority/Court concerned is not expected to examine the merits and demerits of the grounds raised in the application for leave to contest. If the Authority/Court finds that the grounds raised prima facie disclose a defence which, if accepted, may result in non-suiting the landlord from claiming eviction, the tenant is entitled to obtain leave to contest the eviction petition on merits. [Vijay Kumar Ahluwalia v. Bishan Chand Maheshwari, (2017) 3 SCC 189]

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