Case BriefsSupreme Court

Supreme Court: In a case relating to a drug racket spread across three States namely, U.P., Punjab and Rajasthan, the 3-Judge Bench of N. V. Ramana, CJ., and Krishna Murari, Hima Kohli*, JJ., reversed the impugned order of Delhi High Court releasing the respondent-accused on post-arrest bail.  

Although the Court reiterated that a confessional statement made under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) is inadmissible, it found other materials against the respondent, sufficient to indicate his involvement in the alleged crime.   


The instant appeal had been filed by the Narcotics Control Bureau (NCE) to assail the impugned order of the Delhi High Court granting post-arrest bail to the respondent. The respondent is facing trial for the offences under Sections 8/22 and 29 of the NDPS Act. 

The NCB had recovered a parcel containing 50,000 Tramadol tablets weighing 20 kgs on the basis of secret information stating that one Gaurav Kumar Aggarwal in Agra had booked a parcel suspected to contain NRX tablets to be delivered to one Manoj Kumar (respondent herein) at Ludhiana, Punjab. The accused, Gaurav Kumar Aggarwal revealed that the recovered drug was booked by the respondent from one Promod Jaipuria, a resident of Jaipur.  

To unveil the whole racket, NCB conducted a raid at the godown of Promod Jaipuria during which a cache of drugs covered under the NDPS Act, was recovered, which included 6,64,940 tablets of different psychotropic substances including Tramadol, Zolpidem, and Alprazolam tablets/capsules weighing around 328.82 Kgs, 1400 Pazinc Injections amounting to 1.4 ltrs and 80 Corex Syrup bottles weighing 8 ltrs. Another 9,900 tablets weighing 990 gms. were recovered during the search conducted by the NCB officials at the premises of the co-accused, Manoj Kumar at Ludhiana. 

Noticeably, the respondent had approached the Special Judge, NDPS twice with his application for bail, and both the applications were dismissed by the Special Judge. However, in a petition filed under Section 439 CrPC, 1973, the High Court allowed the respondent’s bail application.  

Contentions of the Parties  

NCB argued that the High Court had completely overlooked the fact that it was on the basis of the disclosures made by the respondent himself that huge quantities of narcotic drugs and injections were seized from the godown of the co-accused, Promod Jaipuria who was subsequently arrested by the Department; therefore, the High Court had committed a grave error by not applying the terms and conditions imposed under Section 37 of the NDPS Act.  

On the contrary, the respondent submitted that the consignment in question was neither booked by him nor for him and that he had no connection with the other co-accused persons. Further, no recovery was made from him and nothing was found in the search conducted at his residence and shop.  

Provisions for Bail under NDPS Act  

The Court observed that not only are the limitations imposed under Section 439 CrPC to be kept in mind while considering a bail application under NDPS Act but also the restrictions placed under Section 37 (1) (b) of NDPS Act to be factored in. Section 37 (1) (b) of NDPS Act states:  

“(i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release; and 

(ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence.  

Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.”  

Relying on Collector of Customs v. Ahmadalieva Nodira, (2004) 3 SCC 549, and State of Kerala v. Rajesh, (2020) 12 SCC 122, the Court stated that the expression “reasonable grounds” in Section 37 (1) (b) would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence.  

The Court clarified that the entire exercise that a court is expected to undertake at the stage of bail under Section 37 of NDPS Act is to see the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and that he is unlikely to commit an offence under the Act while on bail. 

Admissibility of Confessional Statements made under S. 67 NDPS Act 

The Court opined that the High Court could not be faulted for holding that NCB could not have relied on the confessional statements of the respondent and the other co-accused recorded under Section 67 of the NDPS Act in the light of law laid down in Tofan Singh v. State of T.N., (2013) 16 SCC 31, wherein a confessional statement recorded under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act.  

Therefore, the Court held that the admissions made by the respondent while in custody to the effect that he had illegally traded in narcotic drugs, would have to be kept aside.  

Findings and Conclusion  

Considering the other materials submitted by NCB to contest the bail of the respondent, the Court noted the following:  

  1. It was the disclosures made by the respondent that had led NCB to arrive at and raid the godown of the co-accused, Promod Jaipuria which resulted in the recovery of a large haul of different psychotropic substances in the form of tablets, injections and syrups.  
  2. It was the respondent who had disclosed the address and location of the co-accused, Promod Jaipuria who was arrested later on.  
  3. The CDR details of the mobile phones of all co-accused including the respondent showed that they were in touch with each other.  

Hence, the Court opined that even dehors the confessional statement of the respondent and the other co-accused recorded under Section 67 of the NDPS Act, the other circumstantial evidence brought on record by the appellant-NCB ought to have dissuaded the High Court from exercising its discretion in favour of the respondent and concluding that there were reasonable grounds to justify that he was not guilty of such an offence under the NDPS Act. 

Calling the observation made in the impugned order that since nothing was found in the possession of the respondent, he is not guilty of the offence he had been charged with a premature assumption, the Court stated that the narrow parameters of bail available under Section 37 of the Act has not been satisfied in the instant case. Further, the Court stated, 

“The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act.”  

In the backdrop of above, the Court set aside the impugned order releasing the respondent on post-arrest bail. The bail bonds were declared cancelled and the respondent was directed to be taken in custody forthwith. 

[Narcotics Control Bureau v. Mohit Aggarwal, 2022 SCC OnLine SC 891, decided on 19-07-2022] 

*Judgment by: Justice Hima Kohli 

Appearance by:  

For NCB: Jayant K. Sud, Additional Solicitor General 

For the Respondent: P.K. Jain, Advocate-on-Record 

Kamini Sharma, Editorial Assistant has put this report together 

Canada SC
Case BriefsForeign Courts

[6:3 verdict] Canada Supreme Court: In the recent matter, the Canada Supreme Court, deliberated upon the matter of expanded rape laws that were implemented in 2018 into the Criminal Code to remove barriers that have deterred victims of sexual offences from coming forward. The 9- Judge Bench of the Court comprising, Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer, and Jamal JJ, with a ratio of 6: 3, held that the amendments introduced to the criminal code are constitutional and if required by the Judge, to deliberate upon the facts, private documents of a complainant or an accused can be used in a trial for balancing the rights and interests of the accused, the complainant, and the public.

The majority observed that “the right to a fair trial does not guarantee “the most advantageous trial possible from the accused’s perspective” nor does it guarantee “perfect justice.” Further it was added that, “the guarantee is fundamentally fair justice, which requires consideration of the privacy interests of others involved in the justice system”

Facts and contentions of the case

J.J and Shane Reddick were accused of sexual assault in different cases in Colombia and Ontario respectively. The two accused challenged the constitutionality of Sections 278.92 to 278.94 of the Criminal Code (Code), arguing that the Parliament had jeopardized three fundamental rights guaranteed to accused persons under the Canadian Charter of Rights and Freedom (Charter), namely:

  1. the right to silence and the privilege against self-incrimination under ss. 7 and 11(c);
  2. the right to a fair trial under ss. 7 and 11(d); and
  3. the right to make full answer and defence under ss. 7 and 11(d).

In J’s case, the application judge held that one provision of the record screening regime was unconstitutional; the Crown appealed that ruling, and J cross-appealed, contesting the constitutionality of the regime in its entirety. In Shane Reddick’s case, complainant S challenged the application judge’s interlocutory constitutional ruling, which effectively prevented her from participating in the record screening process and declared the regime unconstitutional in its entirety. The complainant was granted the right to be added as a party in the record screening process by the Supreme Court.

The Law in question

Criminal Code provisions under Sections 278.92 to 278.94 of the Criminal Code set out a record screening regime to determine the admissibility of records relating to the complainant that is in possession or control of the accused.

The Canadian Charter of Rights and Freedom, under Sections 7 and 11 guarantees the right to silence and the privilege against self-incrimination, the right to a fair trial, and the right to make full answer and defence to the accused.

The Majority Ruling

The opinion of the Court was delivered by Wagner C.J. and Moldaver J in which Karakatsanis, Martin, Kasirer, and Jamal JJ., joined. The majority made the following observations regarding the constitutionality of the “record screening process”-

Admissibility of the record

The majority deliberated that the admissibility threshold in s. 278.92 does not impair fair trial rights as it does not breach ss. 7 or 11(d) of the Charter. The accused’s right to a fair trial does not include the unqualified right to have all evidence in support of their defence admitted. The admissibility threshold of the record screening regime establishes that private records are only admissible if the evidence is relevant to an issue at trial and has a significant probative value. Therefore, a balance between the rights and interests of the accused, the complainant, and the public is maintained.

The majority based its following observations that the Stage One application process in s. 278.92 is not overbroad. As the definition of “record” in s. 278.1 which supports the constitutionality of s. 278.92 of the Code, includes records that come within the enumerated categories of evidence or contain information of an intimate and highly personal nature of the complainant. Hence such records that meet the admissibility threshold for screening are adduced at a trial.

Therefore, the majority opined, Private records are analogous to s. 276 evidence, as they can also implicate myths that are insidious and inimical to the truth-seeking function of the trial. Like s. 276 evidence, private records encroach on the privacy and dignity of complainants. They too require screening to ensure trial fairness under Sections 7 and 11(d) of the Charter.

Participation of Complainant in trial

The majority deliberated that the complainant’s participation provisions in Section 278.94 in the record screening process do not violate the accused’s fair trial rights protected by Sections 7 and 11(d) of the Charter. The Court stated that firstly, the right to a fair trial does not guarantee the most advantageous trial possible, and requires consideration of the privacy interests of others involved in the justice system. Secondly, there is no absolute principle that disclosure of defence materials inevitably impairs cross-examination and trial fairness, and providing advance notice to complainants that they may be confronted with highly private information is likely to enhance their ability to participate honestly in cross-examination. Therefore, the participation of complainants is justified because they have a direct interest in records, for which they have a reasonable expectation of privacy, which are adduced in open court, and hence, their contributions are valuable in the trial.

The Dissent

Justice Brown found the record screening process unconstitutional for private records but constitutional for evidence of past sexual activity. He stated that the record screening regime is overbroad as the term ‘record’ under the process is not limited to records created in a confidential context, nor is it limited to materials containing information of an intimate or highly personal nature.

“The one–sided nature of the obligations shows that it is not rationally connected to its objective as purported concerns for a complainant’s privacy, dignity and equality interests, confidence in the justice system and integrity of the trial process are cast aside when those private records are sought to be adduced by the Crown. The regime is not the least drastic means of achieving the legislative objective. The broad definition of “record”, combined with the heightened admissibility threshold, will result in the exclusion of defence evidence that is not prejudicial and is highly relevant. A narrower regime could further the goals of empowering and protecting complainants in a real and substantial manner, while impairing the accused’s rights to a lesser extent.”

Justice Rowe agreed with Justice Brown, and explained how to make a decision when sections 7 and 11 of the Charter are brought up at the same time. He stated that accused persons must establish not only the content of the principle of fundamental justice that they allege is violated, but also that it is not outweighed by other considerations. Such an approach undermines the purpose of the broad protection of the right to a fair trial under Section 11 and the purpose of Section 1 to hold the state to the burden of proof to show that any limit is demonstrably justified in a free and democratic society.

Justice Côté agreed with Justices Brown and Rowe that the record screening process is unconstitutional and the analytical approach in respect of Section 7 of the Charter respectively. However, he disagreed with the analyses and the conclusions of both the majority and Brown J. on the interpretation of “record” and “adduce”. He stated that adopting a narrow category–based approach to the interpretation of “record” avoids many of the absurd results that inevitably follow from a broad interpretation. A broad interpretation will result in an absurd two–tiered system of admissibility that favours the Crown and will lead to the absurd consequence of having the record screening regime create a distinction between information exchanged orally and information exchanged through electronic means. With respect to “adduce”, given that the record screening regime is focused on physical records rather than on a category of evidence, its plain meaning should be adopted, as it relates directly to the physical record.


With their afore-stated observations the majority concluded that Sections 278.92 to 278.94 of the Code are constitutional in their entirety, as they apply to both s. 276 evidence applications and private record
applications. Hence, the Court opined that the Crown’s appeal should be allowed, J’s cross-appeal to be dismissed, S’s appeal allowed for participating in the trial and the application judges’ rulings quashed.

[R v. J.J., 2022 SCC OnLine Can SC 3, decided on 30-06-2022]

Advani LawExperts Corner

In an age of increased cross-border investment, transaction and trade, modern day commercial contracts incorporate arbitration clauses as an efficient means of resolving disputes in a time-bound manner. Despite its benefits, arbitration proceedings can be expensive and is not an economical means of resolving petty disputes. Thus, a growing number of contracts have seen parties incorporate certain preconditions that must be satisfied before invoking arbitration. These preconditions take the form of “multitiered” and “escalation” clauses which generally envisage conciliatory cost-efficient methods of mutually resolving disputes before resorting to the zero-sum game of arbitration.


This proposed silver bullet has instead given rise to new conundrums that affect the efficacy of arbitration proceedings. The non-compliance of these preconditions have instead been used by parties to challenge the legality of an Arbitral Tribunal so constituted and in rare cases, some of the domestic courts around the world have gone so far as to annul the awards arising from improperly constituted tribunals.


The present article attempts to characterise the pre-arbitration procedural requirements and whether the same is a matter of jurisdiction (the theory that until the precondition procedures have been satisfied, the arbitration agreement is not triggered and that the constitution of a tribunal is invalid and the issue concerning the same cannot be heard by the tribunal as it goes to the root of its jurisdiction) or a matter of admissibility (the theory that the arbitration agreement exists and provides the arbitrators with jurisdiction to hear the issue of non-compliance of the preconditions, but does not permit adjudication of material claims until the issue of adherence to the preconditions has been satisfied).


Position in India

As of date, the aforementioned issue has not presented itself before the courts of India in order to determine the position of Indian laws with respect to it. However, before delving into the basket of foreign jurisprudence that have definitively opined on the aforesaid issue, it is necessary to examine the judicial pronouncements made by the courts of India that differentiate the issues of “jurisdiction” from those of “admissibility”.


In this regard, it is pertinent to highlight the case of BSNL v. Nortel Networks (India) (P) Ltd.[1], wherein the  Supreme Court has applied the “tribunal versus claim test” to determine whether the issue of a statutory time bar is a matter concerning jurisdiction or admissibility. To put it succinctly, the “tribunal versus claim test” asks whether the objection/issue is targeted at the tribunal (in the sense that the claim should not be arbitrated due to a defect in or omission to consent to arbitration), or at the claim (in that the claim itself is defective and should not be raised at all). In the present case, the Court decreed in favour of holding the issue of limitation as one towards admissibility as it challenges the nature of claims raised as opposed to challenging the jurisdiction of the Tribunal.


Another case of import, is United India Insurance Co. Ltd. v. Hyundai Engg. and Construction Co. Ltd.[2], wherein the Supreme Court held that in a case where the amount under the car policy has to be admitted as a precondition to bring forth the claim in arbitration, it is necessary that the said precondition has to be satisfied before arbitration can be invoked as only the admitted amount can be made part of the dispute to be adjudicated by the Tribunal. Thus, to reiterate, the arbitration clause would come to life only if the liability in respect of the car policy is admitted by the purportedly defaulting party, as a precondition.


The Supreme Court in Demerara Distilleries (P) Ltd. v. Demerara Distillers Ltd.[3], took a different stance altogether with respect to the examination of the preconditions and stated that one must also consider whether such preconditions have been complied with by the correspondence of the parties, and the likelihood of success especially in cases where the preconditions are open-ended and do not provide conclusive definitive terms to measure the attempt of satisfying the preconditions. In the instant case, the Court decreed after inferring the correspondence exchanged that the attempts to resolve disputes by mutual discussion and mediation as a precondition is merely an empty formality and not mandatory. It is pertinent to note that the Court itself determined the nature of preconditions without considering whether the Arbitral Tribunal was sufficiently empowered to decide the same.


Whereas the Supreme Court in S.K. Jain v. State of Haryana[4], had held that the language of the arbitration clause necessitated the adherence of pre-requirements, however the decision by the Supreme Court was reached after the Arbitral Tribunal was constituted and the said Tribunal held that it cannot assume jurisdiction as the mandatory requirements were not satisfied.


The courts in India have not conclusively dealt with the issue of whether non-compliance of arbitral preconditions are to be treated as a matter affecting the jurisdiction of the Tribunal, or whether the same is a matter of admissibility.


In light of the divergent and inconclusive Indian jurisprudence on the characterisation of preconditions, it is imperative to examine foreign jurisprudence in recent years which have definitively opined on the characterisation of preconditions.


Prevailing Trend in International Jurisprudence

Perhaps the earliest known case to attempt the delineation of the issues of admissibility and jurisdiction is in the US Supreme Court case of BG Group Plc v. Republic of Argentina[5]  where a challenge to an arbitral award was rejected, as the challenge was made on the premise that mandatory preconditions to arbitration have not been complied with. The precondition arose out of a bilateral investment treaty (BIT) agreement between UK-Argentina, which required the claimant to litigate their claims for 18 months in the domestic courts of Argentina prior to commencing a claim in arbitration.


The US Supreme Court went on to hold that in absence of a contrary provision in the arbitration agreement, questions as to whether the parties are bound by an arbitration clause are for the courts to decide and it is for the constituted Arbitral Tribunal to decide the meaning and import of procedural preconditions, including their non-compliance.


Recently, the Hong Kong Court of First Instance (HKCFI), in T v. B[6], held that any matter concerning the compliance or non-compliance of arbitral preconditions is a question of admissibility and not jurisdiction even though the parties and the arbitrator in the instant case referred to it as a “jurisdictional challenge”. This Court affirmed and upheld the rationale in C v. D[7] and stated that it is prudent to deem preconditions as a matter of admissibility rather than jurisdiction as the same would be in line with the general trend of judicial restraint in interfering with the arbitration proceedings and would facilitate expeditious disposal of matters rather than annulling awards after a long and expensive process on non-fulfilment of preconditions, which would render the arbitration process as circuitous and would defeat the very object of time-bound and expeditious disposal of arbitration proceedings. Since there is no doubt as to the mutual consent to arbitration and the challenge to the award was with reference to certain procedural prerequisites that have not been followed, it would not be appropriate for the domestic courts to hear such a challenge where the Arbitral Tribunal is empowered to hear such disputes.


The aforesaid case of C v. D[8] has also been upheld in Kinli Civil Engg. v. Geotech Engg.[9]  in the context of a dispute brought under a contract containing an arbitration agreement providing that a party may submit a dispute to arbitration. The Court granted a stay of litigation proceedings in favour of arbitration noting that the Court has no role in determining whether conditions with respect to the right to arbitrate have been satisfied.


The English High Court has taken the same view in Republic of Sierra Leone v. SL Mining Ltd.[10] expressly stating that any alleged non-compliance of preconditions is to be treated as a matter of admissibility, despite the fact that the defendant in the instant case failed to comply with the preconditions to arbitration. It also stated that the leading commentaries and authorities were all in favour of preconditions to arbitration being an issue of admissibility and not one of jurisdiction.


This rationale and reasoning shows a clear understanding of the distinction between issues of admissibility and those of jurisdiction, as can be evinced by a consensus of the domestic courts around the world using a similar line of thought, and thus framing a common standard governing international commercial arbitration.


Concluding Remarks

When characterising contractual preconditions to arbitration agreements, it is prudent to ascertain the intention of the parties when drafting such prerequisites, therefore as a general rule of thumb, the better approach is to treat preconditions which envisage mutual settlement or domestic litigation as aspirational or exhortive, unless the parties state otherwise in clear, unequivocal language that the said preconditions are a matter of jurisdiction. Whether the said preconditions are mandatory or optional must be left to be determined by the Arbitral Tribunal and not by the domestic courts, thereby observing the kompetenz-kompetenz principle.


To quote Gary Born’s International Commercial Arbitration (3rd edn. 2021):

“The best approach is to presume, absent contrary evidence, that pre-arbitration procedural requirements are not jurisdictional, but matters better determined by the arbitrators.”

However, the aforesaid approach seeds doubt as to the malleable nature of preconditions, and would seem contrary to the contractual intent of the parties to commence arbitration when the preconditions have not been satisfied. In the same vein, if these contractual preconditions are not satisfied a dispute arises between the parties, and if an arbitration agreement exists, the disputes must be referred to arbitration. If the parties had intended for all issues and disputes between the parties to be resolved by arbitration, it would be imprudent to label the non-compliance of preconditions as an issue to be determined by the courts which would ultimately treat preconditions as a matter of jurisdiction than that of admissibility.


It is pertinent to clarify, that characterising preconditions to arbitration as an issue of admissibility does not give a go-by to the preconditions to be satisfied. Whether the preconditions are mandatory or exhortive in nature is to be determined by the arbitrator who is vested with the authority to arbitrate and resolve all issues arising out of the contract. For example, where the preconditions use certain words such as “shall” rather than “may”, it is to be treated as a mandatory preconditions. The arbitrator if, he deems the preconditions as mandatory to the tee, may direct the parties to instead comply with the preconditions or apply a sanction of costs to the non-complying party.


The underlying basis for this assumption is that any pre-conditional procedures often require interpretation of the contractual intent and application of the preconditions by itself acts as a moratorium period for parties to settle some or all of the disputes. Thus, from its very nature, these preconditions to arbitration act as a stopgap from bringing claims to arbitration and should any claims which are not subject to preconditions be brought before the Arbitral Tribunal, the said claims would be treated as premature.


At this juncture I refer to the Oxford Handbook of International Arbitration (OUP 2020) at Paras 6-7:

“… the question of jurisdiction concerns the power of the Tribunal. The question of admissibility is related to the claim, rather than the Tribunal, and asks whether this is a claim which can be properly brought. In particular, it considers the question of whether there are any conditions attached to the exercise of the right to arbitrate which have not been fulfilled. Those conditions might be, for example, a limitation period applicable to the right to commence arbitration, or a requirement to mediate and/or negotiate before arbitral proceedings may be commenced.”


Hence, if a claim is deemed to be premature by the Tribunal and consequently, not admissible, in such circumstances, the parties would be constrained to appoint a new tribunal after complying with the preconditions. It is clearly established that preconditions by its very nature are a matter of admissibility and its adjudication is best left to the Tribunal rather than the domestic courts, which would be counter-intuitive to the purpose of arbitration.


It is perhaps fortunate and unfortunate that the courts in India have not conclusively determined on the characterisation of preconditions as a matter of admissibility or jurisdiction as this allows the courts to prepare a comprehensive set of rules and judicial tests in line with the global arbitration practices of treating preconditions to arbitration as a matter of admissibility. Once, the characterisation of arbitral preconditions is deemed as one of admissibility, there is no scope for interference by the domestic courts. However, if the said precondition were to be treated as a matter of jurisdiction it would give way to a slew of frivolous litigation and congest the already saturated Indian courts with inane applications to set aside the award on petty grounds such as that of non-compliance of arbitral preconditions.


† Hiroo Advani, Founder and Chairman, Advani Law.

†† Asif Lampwala, Senior Partner, Advani Law.

††† Kenneth Martin, Associate, Advani Law.

[1] (2021) 5 SCC 738.

[2] (2018) 17 SCC 607.

[3] (2015) 13 SCC 610.

[4] (2009) 4 SCC 357.

[5] 188 L Ed 2d 220 : 134 S Ct 1198 : 572 US 25 (2014).

[6]  2021 HKCFI 3645.

[7] 2021 HKCFI 1474.

[8] 2021 HKCFI 1474.

[9] 2021 HKCFI 2503.

[10] 2021 Bus LR 704 : 2021 EWHC 286 (Comm).

Case BriefsSupreme Court

Supreme Court: The Division Bench of K.M Joseph* and S. Ravindra Bhat, JJ., held that an unregistered family settlement document is admissible to be placed “in” evidence if it does not by itself affect the transaction though the same cannot be allowed “as” evidence. The Bench expressed,

“Merely admitting the Khararunama containing record of the alleged past transaction, is not to be understood as meaning that if those past transactions require registration, then, the mere admission, in evidence of the Khararunama and the receipt would produce any legal effect on the immovable properties in question.”

The Court was dealing with the impugned order of the Telangana High Court, whereby the High Court had set aside the order passed by the Trial Court by holding that the unregistered and unstamped family settlement “Khararunama” and receipt of Rs. 2,00,000 by the respondent were not admissible in evidence.

Factual Contours

The respondent, younger brother of the appellants had instituted a suit seeking declaration of title over the plaint schedule property and for eviction of the appellants and consequential perpetual injunction was also sought against the appellants. Evidently, there was a partition between the appellants, the respondent and their other siblings. Pursuant to some disputes between the parties a Khararunama dated 15-04-1986 was executed recording the facts.

It was contended by the respondent that the Khararunama required registration under section 17(1)(b) of the Registration Act, 1908 and under the said settlement, appellants ought to pay certain sum to the respondent. The document would come into force after the receipt of the consideration.

Statutory Requirements

Undoubtedly, Section 17(1)(b) makes ‘other non-testamentary instruments’, which purport or operate to create, assign, limit or extinguish whether in present or in future any right or interest whether vested or contingent of the value of Rs.100/- and upwards in an immovable property compulsorily registrable. Section 17(1)(c) reads as follows:

“17(1)(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and”

Section 49(c) of Registration Act prohibits the admitting of compulsorily registrable documents which are unregistered as evidence of any transaction affecting immovable property unless it has been registered.

Opinion and Analysis

Opining that unregistered document can be used as evidence of any collateral transaction, the Bench stated, however, the said collateral transaction should not itself be one which must be affected by a registered document. In K. Panchapagesa Ayyar v. K. Kalyanasundaram Ayyar, 1956 SCC OnLine Mad 141, the Madras High Court was of the view:

“To sum up it is well settled in a long series of decisions which have since received statutory recognition by the Amending Act of 1929 (vide the concluding words of the new proviso to Section 49 of the Registration Act) that a compulsorily registrable but an unregistered document is admissible in evidence for a collateral purpose that is to say, for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property”.

Whether the Khararunama by itself affected rights in the immovable properties in question?

The next question before the Bench was whether the Khararunama by itself ‘affects’, i.e., by itself creates, declares, limits or extinguishes rights in the immovable properties in question or whether it merely refers to what the appellants alleged were past transactions which had been entered into by the parties, the Bench answered, going by the words used in the document, they indicate that the words were intended to refer to the arrangements allegedly which the parties made in the past and the document did not purport to by itself create, declare, assign, extinguish or limit right in properties.

Evidentiary Value of Khararunama

As per Section 49(1) (a), a compulsorily registrable document, which is not registered, cannot produce any effect on the rights in immovable property by way of creation, declaration, assignment, limiting or extinguishment. Thus, observing that Section 49(1) prevents an unregistered document being used ‘as’ evidence of the transaction, which affects immovable property, the Bench stated,

“If the Khararunama by itself, does not ‘affect’ immovable property, being a record of the alleged past transaction, though relating to immovable property, there would be no breach of Section 49(1)(c), as it is not being used as evidence of a transaction effecting such property.”

The Bench held that being let in evidence is different from being used as evidence of the transaction; thus, the transaction or the past transactions could not be proved by using the Khararunama as evidence of the transaction. In other words, the Bench held, “merely admitting the Khararunama containing record of the alleged past transaction, is not to be, understood as meaning that if those past transactions require registration, then, the mere admission, in evidence of the Khararunama and the receipt would produce any legal effect on the immovable properties in question.”

In Muruga Mudallar v. Subba Reddiar, 1950 SCC OnLine Mad 136, the Madras High Court had held that, “the consequence of non-registration is to prohibit the document from being received not “in” evidence, but “as” evidence of any transaction affecting such property.”

As far as stamp duty was concerned, the Bench was of the view that since the Khararunama was a mere record of past transaction it did not require to be stamped.


Lastly, the Bench held, when there had been a partition, there may be no scope for invoking the concept of antecedent right as such, therefore since the appellants and the respondents had partitioned their joint family properties, the properties mentioned in the Khararunama would be separate properties of the respondent.

Resultantly, the Appeal was allowed. The impugned Judgment was set aside and the Khararunama was held to be admissible in evidence but not as evidence.

[Korukonda Chalapathi v. Korukonda Annapurna Sampath Kumar, 2021 SCC OnLine SC 847, decided on 01-10-2021]


Kamini Sharma, Editorial Assistant has put this report together

Appearance by:

For the Appellants: Advocate M. Vijay Bhaskar

For the Respondent: Advocate Venkateshwar Rao

*Judgment by: Justice K.M Joseph

Know Thy Judge| Justice K.M. Joseph

Case Briefs

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Ramesh Nair (Judicial Member) allowed an appeal which was filed against the order of the adjudicating authority wherein they had rejected the refund claim on the ground that sales commission is not input service and also on the ground that the appellant have admittedly reversed the amount without under protest hence, the appellant had agreed to the audit, on the basis of which the audit para was closed and the queries were settled.

The appellant had availed the Cenvat Credit in respect of service tax paid on sales commission. The audit officers had raised an objection that the sales commission was not an admissible input service after which appellant had reversed the Cenvat credit. Thereafter, they had filed refund claim within one year from the date of reversal on the ground that as per subsequent development of law in case of Essar Steel India Ltd. v. CCE, 2016-TIOL-520-CESTAT-AHM the Cenvat credit was admissible on sales commission.

Counsel appearing on behalf of the appellant submitted that as regards the objection of non admissibility of the Cenvat credit on sales commission the department had not issued the show cause notice. Therefore, the refund cannot be rejected. He further submitted that even though the protest was not lodged while reversing the credit the appellant had within right to file a refund claim within a stipulated period of one year as provided under section 11B of Central Excise Act, 1944.

The Tribunal found that the reversal was made on the objection of the audit party. Though the reversal was not made under protest but the appellant has right to claim refund within one year as mandated under section 11B of Central Excise Act,1944., therefore only on the ground that the appellant has not filed under protest letter while reversing the credit refund cannot be rejected on this ground.

Further the Tribunal clarified that the merit that whether the sales commission was admissible input service or otherwise the issue was subjudice before the Hon’ble High Court of Gujarat in the case of Essar Steel India Ltd. and also before the Hon’ble Supreme Court in the case of the Cadila Health Care Ltd. Therefore, at this stage the merit could not be decided.

The Tribunal allowed the appeal by way of remand to the Adjudicating Authority for passing a fresh order after the legal issue is settled on the admissibility of the Cenvat Credit on sales commission.[Prayosha Healthcare (P) Ltd. v. C.C.E. & ST, 2021 SCC OnLine CESTAT 2555, decided on 21-09-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Himachal Pradesh High Court: Vivek Thakur J. allowed the appeal and compensated the appellants because of false denial on thepart of respondents regarding compromise deed.

The facts of the case are such that the Bus Stand Hamirpur is adjacent to the house of the appellants  and is separated by brick wall over a retaining wall and on 30.3.2017 at about 8 AM his scooty was parked in his courtyard adjacent to retaining wall whereupon brick wall of Bus Stand was existing and at that time when respondent 2 was parking his bus towards petrol pump of HRTC located at Bus Stand Hamirpur, the bus had hit the wall and with its impact wall collapsed and debris had fallen on scooty of appellant. The incident was informed to the police wherein respondent 2 entered into a compromise and a compromise deed was reduced into writing which was signed by respondent 2 and appellant and also by witnesses and therefore, report with police was not recorded formally. Later, a claim petition for recovery of damages was filed which was dismissed. Aggrieved by the said dismissal order instant appeal was filed for re-evaluation of evidence and witnesses.

Counsels for the respondents have denied the occurrence as well as causing of damage to scooty and compromise in the matter by respondent 2 was also denied.

The Court observed that denial of execution of a document is one thing, whereas, objection with respect to admissibility or mode of proof is another thing. Even where execution of a document has been denied, a party has a right to raise objection with respect to admissibility as well as mode of proof at the time of its production and exhibition.

The Court observed that in the present case, at the time of accepting the documents i.e. compromise no objection with respect to admissibility of these documents and mode of proof was raised. Therefore, these documents are to be considered to have been placed on record in accordance with law and are to be admitted in evidence. However, genuineness, correctness of contents and relevancy thereof may be determined by Court by taking into consideration the contents thereof or other material on record

The Court relied on judgment P.C. Thomas v. P.M. Ismail, AIR 2010 SC 905 and observed that once a document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that mode adopted for proving the documents is irregular, cannot be allowed to be raised at any stage subsequent to marking of document as exhibit.

The Court thus held “all grounds in reference regarding damage probability caused to scooty and compromise arrived at between appellant and respondent No.2 has been established on record. However, evidence to quantify the damage for which appellant is entitled has not been established by leading cogent and reliable evidence.”

In view of the above, appeal was partly allowed.

[Sahil Kumar v. HRTC, 2021 SCC OnLine HP 4568, decided on 13-05-2021]

Arunima Bose, Editorial Assistant has put this report together 

Counsel for appellants: Mr. P.M. Negi,

Counsel for respondents: Mr. Vikas Rajput and Mr. Arun Raj

Case BriefsSupreme Court

Supreme Court: The bench of Navin Sinha and Krishan Murari, JJ has held that there cannot be any rigid standard or yardstick for acceptance or rejection of a dying declaration and whether or not it will be admissible in evidence will depend upon the fact of each case.

The Court was hearing a case dating back to 1991 where a married woman succumbed to 95% burn injuries. The case became complicated as there was no eye-witness account and the prosecution had based it’s case of circumstantial evidence involving the dying declaration of the deceased. The husband and the sister-in-law of the deceased were acquitted as the dying declaration did not inspire confidence.  “It vacillated between blaming the husband and the sister¬in-law, coupled with the absence of any certificate by the Doctor that the deceased was in a fit state of mind when she made the dying declaration.”

Explaining the law relating to admissibility of dying declaration under Section 32 of the Evidence Act, 1872, the Court held that it alone can also form the basis for conviction if it has been made voluntarily and inspires confidence.  However,

“If there are contradictions, variations, creating doubts about its truthfulness, affecting its veracity and credibility or if the dying declaration is suspect, or the accused is able to create a doubt not only with regard to the dying declaration but also with regard to the nature and manner of death, the benefit of doubt shall have to be given to the accused. Therefore, much shall depend on the facts of a case.”

Applying this principle the Court took note of the following facts at hand:

  • The statement of the deceased was based on hearsay evidence that the deceased was set on fire by her husband. There was no reference to sister-in-law in this statement and neither had she said anything about dowry demand.
  • The next statement of the deceased blamed the sister-in-law. This statement was not signed by anybody and the Doctor who recorded the statement has not been examined. Merely because his signature has been identified by the record clerk of the hospital cannot establish the correctness of its contents.
  • The third statement of the deceased was recorded by the Assistant Sub­Inspector blaming sister-in-law alone without any allegation against the husband, and on the contrary states that she was brought to the hospital by her husband. “It again does not disclose any dowry demand.”
  • Assistant Sub­Inspector who recorded the dying declaration does not state that the deceased was in a fit state of mind to make the statement. He states that the Doctor had certified fitness of mind of the deceased, when the dying declaration itself contains no such statement. In cross examination he acknowledges that the fitness of the deceased was certified by a resident junior doctor separately but whose signature and endorsement is not available on the dying declaration. The record clerk of the hospital also made a statement that the Doctor had not signed in his presence and that at times doctors would come and put their signatures in the record room.

In such facts and circumstances, considering that the statements of the deceased have vacillated, the Court noticed that there is no evidence about the fitness of mind of the deceased to make the dying declaration including the presence of the Doctor, the veracity and truthfulness of the dying declaration remains suspect. Hence,

“it would not be safe to simply reject the probable defence of suicide, to reverse the acquittal and convict the respondents.”

[Naresh Kumar v. Kalawati, CRIMINAL APPEAL NO. 35 OF 2013, decided on 25.03.2021]

*Judgment by Justice Navin Sinha

Know Thy Judge| Justice Navin Sinha

Appearances before the Court by

For appellant: Advocate Rajendra Singhvi

For respondents: Senior Advocate Ramesh Gupta

Case BriefsSupreme Court

Supreme Court: In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench of RF Nariman, S. Ravindra Bhat and V. Ramasubramanian, JJ has held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.

The Court was hearing the reference from the July 26, 2019 order where, after quoting Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 (a three Judge Bench decision of this Court), it was found that a Division Bench judgment in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801 may need reconsideration by a Bench of a larger strength. The Division bench, in the Shafhi Mohammad judgment, had “clarified” that the requirement of a certificate under Section 64B(4), being procedural, can be relaxed by the Court wherever the interest of justice so justifies, and one circumstance in which the interest of justice so justifies would be where the electronic device is produced by a party who is not in possession of such device, as a result of which such party would not be in a position to secure the requisite certificate.

The 3-judge bench in the present case, holding the Shafhi Mohammad judgment to be incorrect said,

“the major premise of Shafhi Mohammad (supra) that such certificate cannot be secured by persons who are not in possession of an electronic device is wholly incorrect. An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it.”

Clarification on Anvar P.V. case:

“… if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions in Section 65-B of the Evidence Act.”

The Court also clarified the confusion over the aforementioned sentence in the Anvar P.V. Case and held that the last sentence in Anvar P.V. case which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is to be read without the words “under Section 62 of the Evidence Act,…”

It said,

The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).”

Stage of furnishing the certificate to the Court:

The Court also took note of the fact that Section 65B does not speak of the stage at which such certificate must be furnished to the Court, and said that in cases where such certificate could be procured by the person seeking to rely upon an electronic record, such certificate must accompany the electronic record when the same is produced in evidence. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case.

“When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.”

General Directions to Cellular companies and internet service providers:

The bench issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period (in tune with Section 39 of the Evidence Act) in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defence evidence, or in the event such data is required to cross-examine a particular witness. This direction shall be applied, in criminal trials, till appropriate directions are issued under relevant terms of the applicable licenses, or under Section 67C of the Information Technology Act.

The Court directed that the aforementioned general directions shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.

Framing of rules and directions under Section 67C of Informational Technology Act:

The Court directed that appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April, 2016.

[Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571  , decided on 14.07.2020]

Case BriefsSupreme Court

Supreme Court: The bench of MM Shantanagoudar and Dinesh Maheshwari, JJ has held that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other evidence. It was held that:

“A dying declaration, if found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely implicate the accused, can be safely relied upon by the courts and can form the basis of conviction. More so, where the version given by the deceased as the dying declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration.”

The Court was hearing a matter wherein the deceased had died after the accused stabbed him during a quarrel relating to land dispute. He gave a statement to the Doctor when he was taken to primary care and that statement, in which the victim narrated the occurrence including the names of the assailants, was treated as a dying declaration. The Trial Court had, upon appreciation of the material on record, acquitted all the accused and held that the dying declaration of the victim was unreliable.

Noticing that the Trial Court had given more weightage to the minor variations found in the evidence   of the prosecution witnesses as compared to the information found in the dying declaration, the Court said:

“The courts cannot expect a victim like the deceased herein to state in exact words as to what happened during the course of the crime, inasmuch as it would be very difficult   for   such   a   victim, who has suffered multiple grievous injuries, to state all the details of the incident meticulously and that too in a parrot­like manner.”

The Court also said that the Trial   Court   was wrong in assuming that   the   Investigation   Officer   in collusion   with   the   doctor   wilfully   fabricated   the   dying declaration. It said:

“It is needless to state that the Investigation Officer and the doctor are independent public servants and are not related either to the accused or the deceased.  It is not open for the Trial Court to cast aspersions on the said public officers in relation to the dying declaration, more particularly when there is no supporting evidence to show such fabrication.”

[Laltu Ghosh v. State of West Bengal, 2019 SCC OnLine SC 236, decided on 19.02.2019]

Case BriefsSupreme Court

Supreme Court: Writing down a 338-page-long verdict, the 5-judge Constitution Bench of Dipak Misra, CJ and AM Khanwilkar, Dr. DY Chandrachud, Dr. AK Sikri and Ashok Bhushan, JJ held:

“Parliamentary Standing Committee Report or any Parliamentary Committee Report can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged nor its validity can be called in question.”

CJI, writing for himself and Khanwilkar, J said:

“The Constitution itself being a dynamic, lively and ever-changing document adapts to the paradigm of epochs. That being the situation, it is also for this Court to take a fresh look and mould the existing precepts to suit the new emerging situations.”

He further concluded:

  • Where the fact is contentious, the petitioner can always collect the facts from many a source and produce such facts by way of affidavits, and the Court can render its verdict by way of independent adjudication.
  • The Parliamentary Standing Committee report being in the public domain can invite fair comments and criticism from the citizens as in such a situation, the citizens do not really comment upon any member of the Parliament to invite the hazard of violation of parliamentary privilege.

Chandrachud, J, writing for himself and Sikri, J said:

“As a matter of principle, there is no reason or justification to exclude the report of a Parliamentary Standing Committee from the purview of the judicial process, for purposes such as understanding the historical background of a law, the nature of the problem, the causes of a social evil and the remedies which may provide answers to intractable problems of governance.”

He, however, added that no Member of Parliament or person can be made liable for what is stated in the course of the proceedings before a Parliamentary Committee or for a vote tendered or given.

Bhushan, J, in his detailed judgment explained that the Parliamentary Committee Reports cannot  be  treated  as  conclusive  or binding of what has been concluded in the Report. He said:

“By acceptance of a Parliamentary Committee Report in evidence does not mean that facts stated in the Report stand proved. When issues, facts come before a Court of law for adjudication, the Court is to decide the issues on the basis of evidence and materials brought before it and in which adjudication Parliamentary Committee Report may only be one of the materials, what weight has to be given to one or other evidence   is   the   adjudicatory   function   of   the   Court which may differ from case to case.”

[Kalpana Mehta v. Union of India,  2018 SCC OnLine SC 512, decided on 09.05.2018]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Order of conviction and sentence passed against the accused-appellants by the trial court under Section 302 of IPC was set aside in a criminal appeal by a Division Bench of Prashant Kumar Mishra and Ram Prasanna Sharma, JJ.

The appellants were accused of murdering the deceased and were tried, convicted and sentenced under Section 302 IPC by the trial court. Learned counsel for the appellants submitted that the case of prosecution was based on the alleged extra-judicial confession made by appellants, but the same was not substantiated by any of the prosecution witnesses.

The High Court, after perusal of the record, found that there was no eyewitness to the incident and the case of prosecution was based on circumstantial evidence. The statement of the witnesses did not support the case of the prosecution. Further, the prosecution tried to establish extra-judicial confession on the basis of statement of PW 10, but her version was not stable right from the beginning of investigation. The Court observed that the extra-judicial confession is admissible if it inspires confidence and is made voluntarily. However, in the instant case, it was held that, the statement regarding extra-judicial confession made by PW 10 could not be acted upon as it was unstable and contradictory. The Court held that on an overall assessment of the evidence adduced by the prosecution, it could not be established that the appellants committed murder of the deceased, and the finding arrived at by the trial court were not sustainable in law. Hence the appeal was allowed and the conviction and sentence awarded by the trial court was set aside. [Dindayal v. State of Chhattisgarh,  2018 SCC OnLine Chh 385, dated 6-4-2018]

Case BriefsSupreme Court

Supreme Court: In the issue relating to admissibility of the certificate issued by Gram Panchayat Secretary as a proof of citizenship, the bench of Ranjan Gogoi and RF Nariman, JJ held that the said document can be used to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed after it clears a 2-step verification process. The steps include:

  • authenticity of the certificate itself.
  • the authenticity of the contents thereof.

The Court explained:

“The latter process of verification is bound to be an exhaustive process in the course of which the source of information of the facts and all other details recorded in the certificate will be ascertained after giving an opportunity to the holder of the certificate.”

The Court was hearing a batch of appeals against the order of the Gauhati High Court had held the Gram Panchayat certificate, submitted under ‘illustrative list of documents admissible’ as a supporting document, to be invalid in law.

Noticing that the Gram Panchayat Certificate merely acknowledges the shifting of residence of a married woman from one village to another, the Court made it clear that the said certificate by itself and by no means establishes any claim of citizenship of the holder of the certificate but will only its holder to establish a link between the holder and the person from whom legacy is claimed.

The Court, however, said:

“If the document and its contents is to be subjected to a thorough search and probe we do not see why the said certificate should have been interdicted by the High Court, particularly, in the context of the facts surrounding the enumeration and inclusion of the documents mentioned in the illustrative list of documents, as noticed above.”

Stating that the said document can in no manner be considered a ‘private document’, the Court held that Gram Panchayat Certificate can, however, be acted upon only to establish a linkage between the holder of such certificate and the person(s) from whom legacy is being claimed. It was made clear that the certificate will be put to such limited use only if the contents of the certificate are found to be established on due and proper enquiry and verification. [Rupajan Begum v. Union of India, 2017 SCC OnLine SC 1411, decided on 05.12.2017]

Case BriefsSupreme Court

Supreme Court: The Bench of Dipak Misra and R.F. Nariman, JJ referred the matter relating to referring and relying upon the report of the Parliamentary Standing Committee in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, before a Constitution Bench regard being had to the substantial question of law relating to interpretation of the Constitution involved.

The Court also asked the Constitution Bench to decide as to was as to whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive.

The Court was hearing the petition relating to action taken by the Drugs Controller General of India and the Indian Council of Medical Research (ICMR) pertaining to approval of a vaccine, namely, Human Papilloma Virus (HPV)  for preventing cervical cancer in women and the experimentation of the vaccine was done as an immunization by the Governments of Gujarat and Andhra Pradesh, before bifurcation, and the 81st Report dated 22nd December, 2014 of the Parliamentary Standing Committee was brought into the notice of the Court

The Court was of the prima facie opinion that the Parliamentary Standing Committee report may not be tendered as a document to augment the stance on the factual score that a particular activity is unacceptable or erroneous. It was opined that the view of a member of the Parliament or a member of the Parliamentary Standing Committee who enjoys freedom of speech and expression within the constitutional parameters and the rules or regulations framed by the Parliament inside the Parliament or the Committee is not to be adverted to by the court in a lis. Explaining the nature of the reports, the Court said that the reference to Constituent Assembly debates, reports of the Parliamentary Standing Committee and the speeches made in the Parliament or for that matter, debates held in Parliament are only meant for understanding the Constitution or the legislation, as the case may be. It is quite different than to place reliance upon Parliamentary Standing Committee report as a piece of evidence to establish a fact. [Kalpana Mehta v. Union of India, 2017 SCC OnLine SC 390, decided on 05.04.2017]


Case BriefsSupreme Court

Supreme Court: In the petition seeking setting aside the appointment of K.V. Chaudhary as Central Vigilance Commissioner and T.M. Bhasin as Vigilance Commissioner on the ground that these persons are not of impeccable integrity and also seeking order directing investigation into the incriminating material seized in the raids conducted on the Birla and Sahara Group of Companies in question, the Court said that the materials which have been placed on record either in the case of Birla or in the case of Sahara are not maintained in regular course of business and thus lack in required reliability to be made the foundation of a police investigation..

The bench of Arun Mishra and Amitava Roy, JJ said that the Court has to be on guard while ordering investigation against any important constitutional functionary, officers or any person in the absence of some cogent legally cognizable material. When the material on the basis of which investigation is sought is itself irrelevant to constitute evidence and not admissible in evidence, it will not be safe to even initiate investigation. There has to be some relevant and admissible evidence and some cogent reason, which is prima facie reliable and that too, supported by some other circumstances pointing out that the particular third person against whom the allegations have been levelled was in fact involved in the matter or he has done some act during that period, which may have co-relations with the random entries. If the same is not done, then the process of law can be abused against all and sundry very easily to achieve ulterior goals and then no democracy can survive in case investigations are lightly set in motion against important constitutional functionaries on the basis of fictitious entries, in absence of cogent and admissible material on record, lest liberty of an individual be compromised unnecessarily.

Noticing that the materials placed on record in the present case are random sheets and loose papers and their correctness and authenticity, even for the purpose of income mentioned therein have been found to be un-reliable having no evidentiary value, by the concerned authorities of income tax, the Court said that the complaint should not be improbable and must show sufficient ground and commission of offence on the basis of which registration of a case can be ordered. [Common Cause v. Union of India, 2017 SCC OnLine SC 41, deiced on 11.01.2017]