2019 SCC Vol. 4 May 14, 2019 Part 4

Arbitration Act, 1940 — S. 20: Appointment of arbitrator qua disputes relating to an unregistered partnership firm, not permissible. [Bhagwan Das Goel v. Pyare Kishan Agarwal, (2019) 4 SCC 731]

Armed Forces — Promotion — Selection post: Challenge to promotion to post of Army Commander from rank of Lt. General, on ground that said post was selection post but R-3 and R-4 were appointed on basis of seniority, not sustainable. [Ravi Dastane v. Union of India, (2019) 4 SCC 747]

Constitution of India — Art. 136 — Ram Janmabhoomi/Babri Masjid suit: As Ram Janmabhoomi/Babri Masjid suit is dispute as to ownership of land on which stood place of worship, there is need of undisputed, accurate, correct translations of voluminous oral evidence and documents in various languages, for undisputed hearing. Hence, directions issued regarding the same. [M. Siddiq v. Suresh Das, (2019) 4 SCC 641]

Constitution of India — Art. 136 — Ram Janmabhoomi/Babri Masjid suit: Despite lack of consensus and earlier attempts having failed, directions issued for mediation. Clarified, there is no legal impediments in Or. 1 Rr. 8(2), (3) & (4) CPC and Or. 23 R. 3-B, CPC to making a reference to mediation for settlement of disputes. Mediators appointed and ordered accordingly. Other directions issued are: (i) Mediation should be conducted with utmost confidentiality, (ii) Venue of mediation should be Faizabad (U.P.), to ensure success in mediation, (iii) Mediation proceedings should be held in camera, (iv) Mediators given liberty to take such legal assistance as deemed necessary at any stage of mediation proceedings, and (v) Mediators requested to complete process and report to court within four weeks. [M. Siddiq v. Suresh Das, (2019) 4 SCC 656]

Displaced Persons (Compensation and Rehabilitation) Act, 1954 — Ss. 20, 22 and 24: In this case there was dispute relating to valuation of property allotted to person displaced after Partition of India, on facts it was held, considering time lapsed and escalation in market value of property, directing allottee to pay present market price was unreasonable. Therefore, Supreme Court itself finalised price to be paid by allottee. [Gurdev Singh v. Union of India, (2019) 4 SCC 762]

Entertainment, Amusement, Leisure and Sports — Sports, Sportspersons, Sports Bodies and Authorities — Cricket — Anti-Corruption Code of BCCI — Quantum of punishment under Art. 6: Principles of sentencing as applicable in criminal jurisprudence, held, relevant for imposing sanction or punishment under Art. 6, Anti-Corruption Code. Anti-Corruption Code of BCCI clearly envisages zero tolerance to corruption. Disciplinary Committee while determining quantum of sanction (punishment) under Art. 6, should consider aggravating and mitigating circumstances. For offences under Arts. 2.1.1, 2.1.2, 2.1.3 and 2.1.4 (corruption), minimum sentence is five years and maximum is lifetime ineligibility. Though principles of sentencing under IPC and Anti-Corruption Code of BCCI are different, principles of sentencing as applicable in criminal jurisprudence may be relevant for imposing sanction (or punishment) under Art. 6, Anti-Corruption Code. Anti-Corruption Code which has articles containing mitigating and aggravating circumstances are necessarily to be taken into consideration while imposing punishment/sanction under Art. 6. [S. Sreesanth v. BCCI, (2019) 4 SCC 660]

 Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Considerations for Appointment of Guardian/Welfare of Child: Paramount considerations are welfare, interest and desire of child. In this case, direction was issued to admit child in particular school but the child declined to continue in that school. Subsequent admission of child in school of his/her desire, held, not violative of court directions. Child cannot be compelled to be admitted in particular school against his/her wishes. [Nutan Gautam v. Prakash Gautam, (2019) 4 SCC 734]

Income Tax Act, 1961 — S. 260-A r/w Ss. 143(1), 143(3) and 148: Dismissal of appeal by High Court in limine, not valid when substantial questions of law are involved. [CIT v. Nokia (India) (P) Ltd., (2019) 4 SCC 759]

Negotiable Instruments Act, 1881 — S. 138: Cheques issued in pursuance of agreement to sell qualify as being towards legally enforceable debt or liability and amenable for prosecution under S. 138 in case of dishonour. Though agreement to sell does not create interest in immovable property, however it constitutes enforceable contract between parties. Any payment made in pursuance of such agreement is duly enforceable debt or liability for purpose of S. 138. [Ripudaman Singh v. Balkrishna, (2019) 4 SCC 767]

Penal Code, 1860 — S. 302 — Murder — Dying declaration — Dying declarations recorded by doctor and Magistrate — Evidentiary value: In this case, A-1, was married to deceased S on 25-4-1987 — A-2 is the sister of A-1. S died of burn injuries suffered during the night intervening 8-7-1989 and 9-7-1989 in the wee hours of the morning of 9-7-1989. Burn injuries were to the extent of 98%. S made two dying declarations, first one was made to Dr SC (PW 5), and second was made to Special Judicial Magistrate (PW 2). Relations between husband and wife were cordial for about one and a half years. Thereafter, A-1 allegedly started ill-treating his wife since she could not conceive, he wanted to marry again even when S was alive. For this reason, he and his sister poured kerosene on S and set her on fire. Accused were charged and tried for murder of S. Trial court acquitted accused by giving them benefit of doubt mainly on the ground that possibility of deceased having committed suicide could not be ruled out. Trial court did not rely upon dying declarations and acquitted the accused. High Court came to conclusion that there was no reason to discredit dying declarations, and convicted accused persons under Ss. 302/498-A r/w S. 34 IPC. The Supreme Court held, no doubt, a dying declaration is an extremely important piece of evidence and where the court is satisfied that the dying declaration is truthful, voluntary and not a result of any extraneous influence, the court can convict the accused only on basis of a dying declaration but, in this case, there was some doubt as to whether the victim was in a fit state of mind to make the statement. The doctor admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, the combined effect of trauma with the administration of painkillers (Fortwin injection) could lead to a case of possible delusion, and therefore, there is a need to look for corroborative evidence in the present case. The occurrence took place in the kitchen and not in the bedroom. Below a pillow there were Mangalsutra, peinjan and even glass bangles and other things. The defence version that the deceased took off all these ornaments and then went to kitchen and committed suicide, (as she did not want to go and live in a village to look after parents of A-1) cannot be totally ruled out. The best witnesses would have been the neighbours who reached the spot immediately after occurrence but they have not been examined. On perusal of entire evidence and the law on the subject, held, the trial court was right in holding that the prosecution had failed to prove its case beyond reasonable doubt. The judgment of the High Court was set aside and acquittal was restored. [Sampat Babso Kale v. State of Maharashtra, (2019) 4 SCC 739]

Penal Code, 1860 — S. 302: In this case, there was murder of husband of woman sought to be secured as wife by accused as links in the chain of circumstances firmly established against accused, conviction confirmed. [Pattu Rajan v. State of T.N., (2019) 4 SCC 771]

Penal Code, 1860 — S. 34 — Principle of vicarious liability under, explained: The true purport of S. 34 IPC is that if two or more persons intentionally do an act jointly, position of law is just the same as if each of them have done it individually. The process of law is intended to meet a situation in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of common intention. The application of principles enunciated in S. 34 IPC, when an accused is convicted under S. 302 r/w S. 34 IPC, in law means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. [Palakom Abdul Rahiman v. State of Kerala, (2019) 4 SCC 795]

Punjab Civil Services Rules — Rr. 7.5(1) & (2) — Nonentitlement to retiral benefits on resignation: Resignation entails forfeiture of past service under the Rules. Since appellant had tendered his resignation, he was not entitled to retiral benefits. [State of Punjab v. Gurbaran Singh, (2019) 4 SCC 805]

Wakf Act, 1995 — Ss. 85, 83, 6 and 7 (as stood prior to amendment in 2013) — Bar of jurisdiction of civil courts as provided under S. 85 — Scope and applicability of: The said bar is confined only to those matters which are required to be determined by the Tribunal under the Wakf Act, 1995. Thus, civil court possesses jurisdiction to entertain suit and proceedings which are not required by or under the said Act to be determined by the Tribunal. In order to determine the said bar of jurisdiction of civil court, one has to ask question as to whether the issue raised in the suit or proceeding concerned is required to be decided under the Wakf Act, 1995 by the Tribunal, under any provision or not. If the answer to that question is in the affirmative, the bar of jurisdiction of civil court would operate. [Punjab Wakf Board v. Sham Singh Harike, (2019) 4 SCC 698]

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