2019 SCC Vol. 8 September 28, 2019 Part 3

Introduction to Book “An Idea of a Law School, Ideas from the Law School”: This article is an introduction to the book “An Idea of a Law School, Ideas from the Law School” given by Prof. (Dr) N.R. Madhava Menon, Hon. Director, Kerala Bar Council M.K. Nambyar Academy for Continuing Legal Education Kochi, Kerala. Introduction to: An Idea of a Law School, Ideas from the Law School by Prof. (Dr) N.R. Madhava Menon [(2019) 8 SCC J-1]

Preface to Book “An Idea of a Law School, Ideas from the Law School”: This article is the preface to the book “An Idea of a Law School, Ideas from the Law School” written by Murali Neelakantan, Principal, Amicus, NLS Batch of 1996. Preface To: An Idea of a Law School, Ideas from the Law School by Murali Neelakantan [(2019) 8 SCC J-4]

Right to Equality: The contention of this article is that equality as understood normally relates to a particular kind of unfair treatment which is called discriminatory and other kinds of grievances which do not have any element of duality or provide scope for comparison have nothing to do with equality. Apart from this section, the article has three other sections. In Section II, the traditional rule of classification is discussed quite briefly. It is pointed out that traditionally the rule believed in minimal judicial scrutiny and this left scope for some injustices remaining unredressed. Section III discusses the new trend of intrusive judicial scrutiny which appears to be the gift of new equal protection or the rule against arbitrariness. In the last and IVth section it is submitted that rule against arbitrariness will be totally unsuitable for being applied to the cases of inequality or discrimination which presuppose duality or adverse treatment by comparison. Right to Equality — Reasonable Classification Rule Versus Rule Against Arbitrariness: A Note by Udai Raj Rai [(2019) 8 SCC J-12]

Tribute to Justice Satya Brata Sinha: This article is a tribute to Justice Satya Brata Sinha. The author of this article served as Justice S.B. Sinha’s law clerk during the 2007-08 Supreme Court year. A Law Clerk’s Tribute To Justice Satya Brata Sinha by Jasdeep Kaur Randhawa [(2019) 8 SCC J-20]

Kerala Private Forests (Vesting and Assignment) Act, 1971 (26 of 1971) — Ss. 3 and 8 — Vesting of land in State — Claim of exemption: Claim of exemption on the basis that the land was under cultivation on appointed date is not permissible where there was no evidence indicating cultivation on appointed date. [P.T. Sreenarayanan Unni v. State of Kerala, (2019) 8 SCC 337]

Criminal Trial — Proof — Falsus in uno, falsus in omnibus — Truth when can be separated from falsehood(s): In this case, neither prosecution version was entirely established, nor the defence version. However, it was held that when both versions were taken together, and the truth was parsed, particularly as defence version included an admission, held, enough facts were established to warrant conviction of accused, though for a lesser offence. [R. Jayapal v. State of T.N., (2019) 8 SCC 342]

Penal Code, 1860 — Ss. 302 and 448 r/w S. 34 — Murder — Eyewitness — Related witness — Illiterate/rustic/rural witness: In this case after appreciation of testimony of eyewitness, minor discrepancies were found immaterial, hence, conviction of main assailants, confirmed. Benefit of doubt given to one of the accessory accused, as his presence was doubtful. [Mallikarjun v. State of Karnataka, (2019) 8 SCC 359]

Penal Code, 1860 — Ss. 302, 376-A and 201 Pt. II — Premeditated rape and murder of five year old girl child — Death sentence: In this case, death sentence of accused for premeditated rape and murder of five year old girl child, commuted to sentence of life imprisonment with a minimum of 25 yrs’ imprisonment (without remission). [Sachin Kumar Singhraha v. State of M.P., (2019) 8 SCC 371]

 Penal Code, 1860 — Ss. 302 and 376 — Rape and murder of girl child by her tutor — Death Sentence: In this case, defence pleaded to modify sentence of the accused on grounds that appellant had no criminal history and was just 22 yrs old at the time of incident, pursuing BSc. It was held that courts below have not considered aspect of possibility of reform or rehabilitation of accused. It is the duty of State to show, that there is no possibility of reform or rehabilitation of accused to seek for capital punishment. At the same time however, appellant took advantage of position of trust. Thus, balancing mitigating and aggravating circumstances of this case, sentence imposed on appellant was modified from death to life imprisonment of an actual period of imprisonment of 30 yrs (without any remission). [Parsuram v. State of M.P., (2019) 8 SCC 382]

Criminal Procedure Code, 1973 — S. 302 — Permission to conduct prosecution — To complainant or victim — Parameters for: Though Magistrate is not bound to grant permission at the mere asking but victim has a right to assist court in a trial before Magistrate. Magistrate may consider as to whether victim is in a position to assist court and as to whether the trial does not involve such complexities which cannot be handled by victim. On satisfaction of such facts, Magistrate would be within its jurisdiction to grant permission to victim to take over inquiry of pendency before Magistrate. [Amir Hamza Shaikh v. State Of Maharashtra, (2019) 8 SCC 387]

Prevention of Corruption Act, 1988 — S. 12 r/w Ss. 13(1)(d) & (2) and 20 and S. 7 — Abetment of or conspiracy for obtaining illegal gratification: Absence of direct evidence for demand and acceptance or conspiracy, held, irrelevant if circumstantial evidence unhesitatingly points towards accessory accused (appellants in present case) as being part of design for obtaining illegal gratification. Further held, once the circumstantial evidence establishes design for obtaining illegal gratification, presumption under S. 20 would arise. [Guruviah v. State, (2019) 8 SCC 396]

Transfer of Property Act, 1882 — S. 58(c) and proviso thereto — Conditional sale mortgage (CSM) or sale with condition for repurchase: Where sale and agreement to repurchase are embodied in separate documents, transaction cannot be mortgage by conditional sale, even if documents are contemporaneously executed but mere fact of use of only one document not indicative of transaction being mortgage and not sale. Where language of document clear, effect must be given to the same but in case of ambiguity, real nature of transaction has to be determined considering recitals in document, relevant factors such as debtor-creditor relationship, valuation of property and transaction value, duration of time for reconveyance and surrounding circumstances. [Dharmaji Shankar Shinde v. Rajaram Shripad Joshi, (2019) 8 SCC 401]

Insolvency and Bankruptcy Code, 2016 — S. 5(8)(f) Expln. [as inserted by Insolvency and Bankruptcy Code (Second Amendment) Act, 2018]: Allottees of real estate projects/homebuyers can be considered, as “financial creditors” and are entitled to be represented in the Committee of Creditors. S. 5(8)(f) Expln. qua such allottees being financial creditors is clarificatory in nature. Money advanced by allottees to real estate developers can also be considered as “financial debt”, as defined under S. 5(8). The validity of S. 5(8)(f) Expln., affirmed. [Pioneer Urban Land And Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416]

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