Supreme Court Monthly Roundup – November 2021

“It is no part of any judge’s duty to strain the plain words of a statute, beyond recognition and to the point of its destruction, thereby denying the cry of the times that children desperately need the assurance of a law designed to protect their autonomy and dignity, as POCSO does.”

-Justice S. Ravindra Bhat

Attorney General for India v. Satish2021 SCC OnLine SC 1076


TOP STORIES


Story of the Month

POCSO| “Touch”, “physical contact” can’t be restricted to “skin to skin contact”; “sexual intent” is the key. SC reverses Bombay HC’s “dangerous precedent” 

A 3-judge bench of UU Lalit, Bela Trivedi and S. Ravindra Bhat, JJ has set aside the Bombay High Court judgment that had acquitted the accused under Section 8 of the POCSO Act, 2012 on the ground that no direct physical contact i.e. skin to skin with sexual intent without penetration would not amount to ‘sexual assault’. 

Pushpa V. Ganediwala, J., of Bombay High Court’s Nagpur Bench had expressed that the act of pressing of the breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’. The said judgment had caused a huge uproar in January 2021, especially since the “shocking” opinion came from a woman judge. 

When the matter reached before the Supreme Court, Justice Bela Trivedi, writing for herself and Justice UU Lalit, held that

“The most important ingredient for constituting the offence of sexual assault under Section 7 of the Act is the “sexual intent” and not the “skin to skin” contact with the child.” 

Read more… 


SC relief to death row convicts who killed 8 members of their brother’s family over property dispute; To serve LI for 30 years

“There is a bounden duty cast on the Courts to elicit information of all the relevant factors and consider those regarding the possibility of reformation, even if the accused remains silent.”

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5-year-old raped, killed, thrown into a stream: SC commutes death sentence to life imprisonment

“There is no doubt that the appellant has committed an abhorrent crime, and for this we believe that incarceration for life will serve as sufficient punishment and penitence for his actions, in the absence of any material to believe that if allowed to live he poses a grave and serious threat to the society, and the imprisonment for life in our opinion would also ward off any such threat.”

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NEET| “Behind abstract number of ‘15 lakh students’ lie human lives”; SC asks NTA to rectify injustice caused to a “one-off” PwBD student

“Education plays a key role in social and economic inclusion and effective participation in society. Inclusive education is indispensable for ensuring universal and non-discriminatory access to education.”

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Land Acquisition| Applying 2-year limitation period as per Section 11A of 1894 Act for passing award in pending cases under Section 24(1)(a) of the 2013 Act impractical

Practical absurdities and anomalies may arise if the two-year period for making of an award in terms of Section 11A of the 1894 Act commencing from the date of issue of the declaration is applied to the awards to be made under Section 24(1)(a) of the 2013 Act.

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EXPLAINERS 



MORE STORIES 


Contractual clauses cannot run contrary to legislative intent

“General phraseology of a contract cannot constitute agreement to apply statutory amendments retrospectively.”

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Disinvesting of Hindustan Zinc Ltd.; SC smells irregularities in bidding process, directs full-fledged CBI enquiry in the matter

“There is a trend of poorly pleaded public interest litigations being filed instantly following a disclosure in the media, with a conscious intention to obtain a dismissal from the Court and preclude genuine litigants from approaching the Court in public interest.”

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Section 138 NI Act| Can’t defeat the complaint merely because it does not elaborate upon Managing Director’s authorization

“It would be too technical a view to take to defeat the complaint merely because the body of the complaint does not elaborate upon the authorisation. The artificial person being the Company had to act through a person/official, which logically would include the Chairman or Managing Director. Only the existence of authorisation could be verified.”

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Some out of five accused abscond; remaining can still be tried for dacoity

“Once it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery a case would fall under Section 391 IPC and would fall within the definition of ‘dacoity’.”

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National Security Act| Delay in considering representation; non-communication of rejection strike at the heart of fundamental rights of detenu

“Preventive detention in independent India is to be exercised with utmost regard to constitutional safeguards.”

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Merely having an explicit clause not sufficient to make time the essence of the contract

Whether time is of the essence in a contract’, has to be culled out from the reading of the entire contract as well as the surrounding circumstances.”

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Tamil Nadu’s loan waiver Scheme for small and marginal farmers upheld

The percentage distribution of the indebted agricultural households depicted the poverty that envelops the class of small and marginal farmers.

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Contractual bar on interest doesn’t only bar the parties from claiming it but also the Arbitrator from awarding it

“Once the contractor agrees that he shall not be entitled to interest on the amounts payable under the contract, including the interest upon the earnest money and the security deposit, the arbitrator in the arbitration proceedings being the creature of the contract has no power to award interest”

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Decreeing a claim while exercising jurisdiction under Section 37 of Arbitration and Conciliation Act 1996 impermissible

“While considering a petition under Section 34 of the 1996 Act, it is well-settled that the court does not act as an appellate forum. The grounds on which interference with an arbitral award is contemplated are structured by the provisions of Section 34.”

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‘Practically difficult to achieve absolute consistency in sentencing’ but here’s what the Courts should do

“It must be candidly acknowledged that there is an element of discretion present while adjudicating the issue of sentence, however, the same cannot be exercised in an unprincipled manner.”

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High Court cannot dismiss second appeal in limine without assigning any reasons

“Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted.”

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HC quashes proceedings based on “draft charge-sheet” yet to be placed before Magistrate! Clear abuse of S. 482 CrPC, holds SC

The High Court transgressed the scope of the powers conferred upon it by restricting the police from submitting the charge-sheet before the Magistrate and by further perusing the contents of the “draft charge-sheet” in the proceedings before it.

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Not wise to shift burden of proof on accused merely because of rampant increase in henious crimes; SC acquits man in a 2009 dacoity case

“The acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent.”

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SC not pleased with Raj HC granting bail merely by “keeping in view the facts and circumstances of the case”; says Courts must record reasons

“The duty to record reasons cannot be obviated by recording submissions, followed by an omnibus “in the facts and circumstances” formula.”

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Not open for Courts to usurp function of disciplinary authority; Can’t substitute one disciplinary punishment with other

“The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the Courts would frown upon.”

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Land Acquisition| Right under Section 5A of 1894 Act to stave off compulsory acquisition cannot be unjustifiably extinguished

“The authorities must remain alive and alert to the precious right created in favour of the citizens which is not meant to be a mere empty ritual.”

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‘Project Proponent not expected to anticipate changes in Environmental Clearance regimes’; SC protects already constructed buildings by Pune Developer

“A Project Proponent is not expected to anticipate the changes in Environmental Clearance (EC) regimes, especially as a result of judicial interventions, and keep revisiting the sanctioned clearances by the competent authority or even raze down validly constructed structures. Neither can it be expected to knock the doors of an authority, not empowered at the relevant time, to process its applications. Such a scenario would render the process akin to a Sisyphean task, eternally inconclusive and never ending.”

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‘Irregularity in cognizance order does not vitiate trial’; SC finds no “failure of justice” in cognizance by Special Judge in Karnataka iron ore illegal mining case

“For vitiating the proceedings, something more than a mere lack of authority has to be established.”

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SC allows sand mining in Bihar; says total ban gives rise to illegal mining; causes huge loss to public exchequer

“When legal mining is banned, it gives rise to mushroom growth of illegal mining, resulting into clashes between sand mafias, criminalization and at times, loss of human lives.”

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Law abiding ex-employees cannot be put to disadvantage merely for vacating the quarters on notice; SC holds decision to grant quarters only to unauthorized occupants is illegal

“To allot the plots to those employees who were found to be in unauthorized occupation would tantamount to giving a premium to their illegality and remaining in occupation and possession of the quarters illegally and unauthorizedly.”

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Military Services| “Much water has flown in the Ganges”; SC expresses dismay over appointments made from 1983 select panel after a lapse of 4-5 years

“No one has questioned their appointments…more than 34 years have rolled by and much water has flown in the Ganges and persons have later promoted to their promotional posts and few of them have retired.”

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Written instruments entitled to much higher degree of credit than parol evidence; Old partnership deed clauses not superseded by new deed will continue to operate

“It would be inconvenient that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of parties should be controlled by averment the parties to be proved by the uncertain testimony of slippery memory.”

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Mere renumbering of case file by the NIA Mumbai does not take away power of the ATS to continue investigation; SC affirms HC’s decision in Bombay bomb blast conspiracy case

“Mere receipt and recording of such information (through an FIR) by itself does not mean that the investigation has also commenced. Rather, the investigation commences when the police takes the first step (of proceeding to the spot or collecting evidence or speaking to a witness or arresting the accused person) on the basis of such information.”

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Lessee learns of cancellation of tender from Newspaper Report. SC holds authority can’t circumvent the requirement of providing effective hearing

“Natural justice is the sworn enemy of intolerant authority”

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CASES REPORTED IN SUPREME COURT CASES


An overview of the cases reported in the latest SCC Volumes

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2021 SCC Vol. 7 Part 3

2021 SCC Vol. 7 Part 4

2021 SCC Vol. 8 Part 1

2021 SCC Vol. 8 Part 2

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SCC Snippets on important law points 

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Using ‘promotion’ and ‘upgradation’ interchangeably? You won’t after reading this SC verdict

In Bharat Sanchar Nigam Ltd. v. R. Santhakumari Velusamy(2011) 9 SCC 510, the bench of RV Raveendran and Markandey Katju, JJ laid down principles relating to the promotion and upgradation.

Read more…

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Contract of Insurance vis-à-vis the requirement of uberrima fides

In Vikram Greentech (I) Ltd. v. New India Assurance Co. Ltd., (2009) 5 SCC 599, the bench of DK Jain and RM Lodha, JJ explained how a contract of insurance needs to be interpreted.

Read more…


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