2021 SCC Vol. 6 Part 1

In Part 1 of Volume 6, read this very interesting article titled: A Cause Célèbre: Publicity Rights in India by Nina R. Nariman,(2021) 6 SCC J-1 analysing the theoretical basis for the right of publicity, and its remedy, the publicity tort, and the practical implications thereof on the development of this unique tort in India.

 Arbitration and Conciliation Act, 1996 — Ss. 31(7), 34 and 37: Interest on delayed payments is grantable, when the contract permits it, even though the space earmarked for filling rate of interest might be left blank in the bid documents. Leaving the space earmarked for filling rate of interest as blank is not to be inferred as “zero” or “nil” interest rate. For determination of rate of interest in such cases, principle laid down in G.C. Roy, (1992) 1 SCC 508, broadly incorporated in S. 31(7)(a), applicable. [Oriental Structural Engineers (P) Ltd. v. State of Kerala, (2021) 6 SCC 150]

Building and Other Construction Workers’ Welfare Cess Act, 1996— S. 14(1) r/w Rr. 3 and 4 of the 1998 Rules and Ss. 2(1)(d) and 2(1)(g) of the BOCW Act — Applicability of BOCW Act to supply contract — Levy and deduction of labour cess in respect of supply contract: Statutory scheme of BOCW Act and Cess Act excludes supply contract from within its ambit, hence cess from invoices/bills of supply contractor cannot be deducted. Cess under Cess Act r/w BOCW Act is leviable in respect of building and other construction works. Condition precedent for imposition of cess under Cess Act is construction, repair, demolition or maintenance of and/or in relation to a building or any other work of construction, transmission towers, in relation inter alia to generation, transmission and distribution of power, electric lines, pipelines, etc. Mere installation and/or erection of pipelines, equipments for generation or transmission or distribution of power, electric wires, transmission towers, etc. which do not involve construction work are not amenable to cess under Cess Act. A contractor who enters into a pure supply contract is statutorily exempted from levy under BOCW Act. [U.P. Power Transmission Corpn. Ltd. v. CG Power & Industrial Solutions Ltd., (2021) 6 SCC 15]

Constitution of India — Arts. 243-D, 243-T, 340, 341, 342, 14, 15 and 16 and Preamble: Reservation for OBCs in local bodies, held, mandatorily must be as per law laid down by the Constitution Bench in K. Krishna Murthy, (2010) 7 SCC 202. Triple test laid down therein mandatorily must be complied with for reservation of seats in local bodies for OBC candidates. Directions and clarifications issued regarding manner in which said triple test or preconditions to be complied with. [Vikas Kishanrao Gawali v. State of Maharashtra, (2021) 6 SCC 73]

Criminal Procedure Code, 1973 — S. 360(10) — Effect of, on applicability of Probation of Offenders Act, 1958: Upon conjoint reading of both the statutes, held, provisions of S. 360 CrPC are in addition to provisions of the 1958 Act or the Children Act, 1960, or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. Thus, both S. 360 CrPC as well as the 1958 Act, held, applicable in respect of offenders before the court, if the requirements therefor are satisfied in the facts of circumstances of the case. [Lakhanlal v. State of M.P., (2021) 6 SCC 100]

Criminal Procedure Code, 1973 — S. 438 — Anticipatory bail under S. 438: Principles summarized regarding considerations on basis of which court is to exercise its discretion to grant relief under the provision, extent of power exercisable by courts under S. 438, S. 438 how to be read by courts and any ambiguity in language of S. 438, how to be resolved. [Nathu Singh v. State of U.P., (2021) 6 SCC 64]

Criminal Procedure Code, 1973 — S. 439 — Bail: Seriousness of offence is one of the relevant considerations while considering grant of bail. In this case, bail was granted by High Court to accused facing very serious charges of forgery and manipulation of court record. The Supreme Court held that the High Court released accused on bail in a routine and casual manner and without adverting to seriousness of case and of offences alleged against him and gravity of matter, such grant of bail, was unsustainable. Hence, bail was cancelled. [Naveen Singh v. State of U.P.,(2021) 6 SCC 191]

Criminal Procedure Code, 1973 — S. 439 — Bail: When bail has been granted to accused on basis of parity with bail granted to co-accused, subsequent cancellation of bail granted to co-accused must have similar consequence insofar as grant of bail to accused is concerned. [Girraj v. Kiranpal, (2021) 6 SCC 205]

Criminal Procedure Code, 1973 — Ss. 378 and 386(a) — Appeal against acquittal — Powers of appellate court in regard to — How to be exercised — Scope of S. 378: If decision is arrived at on basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, such order would be perverse. [Guru Dutt Pathak v. State of U.P., (2021) 6 SCC 116]

Evidence Act, 1872 — S. 32(1) — Dying declaration: Presence of Judicial or Executive Magistrate to record it is not compulsory. It is only as a rule of prudence, and if so permitted by facts and circumstances that, dying declaration may preferably be recorded by Judicial or Executive Magistrate so as to muster additional strength to prosecution case. Legal position why dying declaration ought preferably to be recorded by Judicial or Executive Magistrate, stated. [Jayamma v. State of Karnataka, (2021) 6 SCC 213]

Evidence Act, 1872 — S. 92 Proviso (6) and S. 95 — Applicability: If terms of agreement are clear and unambiguous, same should be acted upon. When terms of agreement deed are clear, S. 92 precludes adduction of oral evidence to show that terms of agreement are different from those expressed in the document. Proviso (6) to S. 92 not attracted in such case. S. 95 which is based on this proviso, also not attracted. [Mangala Waman Karandikar v. Prakash Damodar Ranade, (2021) 6 SCC 139]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Epidemics and Pandemics — COVID-19 Pandemic — Oxygen supply to particular State in pandemic situation: Interim direction by High Court, held, did not render unworkable issue of allocation of oxygen quota which is a pan-India concern. Said direction of High Court is based on minimum requirement as projected by the State. High Court did not preclude mutual resolution by Central and State Governments while proceedings were still pending. High Court furnished adequate reasons for issuing such calibrated interim direction, hence SLP was dismissed. [Union of India v. Mohd. Arif Jameel, (2021) 6 SCC 148]

Insolvency and Bankruptcy Code, 2016 — S. 33: Liquidation proceedings against corporate debtor revive on failure to implement the approved resolution plan and non-compliance with the conditional order granting another opportunity to resolution applicant. Amount deposited by resolution applicant is forfeited, in terms of the Court order upon such failure. [Kridhan Infrastructure (P) Ltd. v. Venkatesan Sankaranarayan, (2021) 6 SCC 94]

Interim Reliefs Based On Unstamped Arbitration Agreements: The issue discussed in this article is that whether the Court can grant interim reliefs or appoint arbitrators even in cases where the document is unstamped or insufficiently stamped. Interim Relief Based On Unstamped Arbitration Agreements: A Critique by Vaibhav Charalwar, (2021) 6 SCC (J-22)]

Motor Vehicles Act, 1988 — Ss. 166, 171 and 173 — Fatal accident claim — Addition towards future prospects: When deceased is self-employed and below the age of 40, addition of 40% is to be made towards income as future prospects. [Rahul Sharma v. National Insurance Co. Ltd., (2021) 6 SCC 188]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 35 and S. 20(b)(ii)(C) — Culpable mental state — Presumption of — Conscious possession — Determination — Seizure of ganja from a truck: In this case, it was held that conscious possession on part of appellant, a conductor/helper on the truck, proved, having regard to the huge quantity i.e. 3332 kg of ganja and the truck being found almost full of ganja camouflaged with only a few bags of onions at the top. [M. Sampat v. State of Chhattisgarh, (2021) 6 SCC 201]

Penal Code, 1860 — S. 124-A — Offence of sedition — Constitutionality questioned: As petitioner sought reconsideration of Constitution Bench decision in Kedar Nath Singh, AIR 1962 SC 955, notice directed to be issued, including upon office of Attorney General for India. [Kishorechandra Wangkhemcha v. Union of India, (2021) 6 SCC 177]

Penal Code, 1860 — S. 304-B — Dowry death and its rebuttable presumption when ingredients therefor are satisfied under S. 113-B of the Evidence Act: Legal position along with duties of Judges, prosecution and defence during conduction of trial and while examining accused under S. 313 CrPC, summarized. Guidelines prescribed in Satbir Singh, (2021) 6 SCC 1, affirmed and reiterated. [Gurmeet Singh v. State of Punjab, (2021) 6 SCC 108]

Penal Code, 1860 — S. 304-B — Phrase “soon before” — Interpretation: Being a criminal statute, generally it is to be interpreted strictly. However, where strict interpretation leads to absurdity or goes against the spirit of legislation, the courts may in appropriate cases place reliance upon the genuine import of the words, taken in their usual sense to resolve such ambiguities. Therefore, courts should use their discretion to determine if the period between the cruelty or harassment and the death of the victim would come within the term “soon before”. Thus, held, phrase “soon before” cannot be construed to mean “immediately before”. Prosecution must establish existence of “proximate and live link” between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives. [Satbir Singh v. State of Haryana, (2021) 6 SCC 1]

Penal Code, 1860 — Ss. 302/149 or Ss. 304 Pt. II/149 — Common object to cause death whether intentional: In this case, from evidence on record, it is clear that assault was intentional which resulted in death of deceased and all accused had this common object. Thus, held, High Court rightly convicted them under Ss. 302/149. [Rajendra v. State of Karnataka, (2021) 6 SCC 178]

Service Law — Recruitment Process — Eligibility Criteria/conditions: Omission to mention relevant qualification in advertisement (intermediate or equivalent qualification with science stream in present case), held, did not relieve State from its obligation to follow existing rules. No estoppel can operate against State to compel it to give effect to promise contrary to law or prevailing rules having statutory force. Besides, eligibility of candidate for public post is to be adjudged as on last date of receipt of applications for such post in terms of relevant advertisement and prevailing service rules. [Suman Devi v. State of Uttarakhand, (2021) 6 SCC 163]

Tort of Publicity: The tort of publicity has been recognised in various jurisdictions abroad, with different facets of the tort being legally recognised in different jurisdictions. In India, the tort of publicity (interchangeably known as “the tort of personality”) has been recognised in a piecemeal manner, looking to the peculiar facts of the case before the court. This article aims to analyse the theoretical basis for the right of publicity, and its remedy, the publicity tort, and the practical implications thereof on the development of this unique tort in India. A Cause Célèbre: Publicity Rights In India A Cause Célèbre: Publicity Rights In India by Nina R. Nariman [(2021) 6 SCC (J-1)]

Transfer of Property Act, 1882 — S. 40 Pt. II and S. 54 — Contract for sale — Nature of rights/interest acquired by the buyer under, in the immovable property in question even prior to execution of registered sale: In this case, relief was given to plaintiff buyer by modifying trial court’s decree for specific performance, as said decree was passed after acquisition had taken place, by alternative decree for compensation under Land Acquisition Act. The buyer under the contract for sale (respondent-plaintiff herein) would be deemed to have stepped into shoes of owner-vendor, and thus, such buyer, held, is entitled to entire amount of compensation along with solatium and interest, etc., as payable to owner under Land Acquisition Act. [Sukhbir v. Ajit Singh, (2021) 6 SCC 54]

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