Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — Or. 41 Rr. 27 to 29: Order for taking additional evidence in appeal without following procedure under Or. 41 Rr. 27, 28 and 29 is not permissible. Unless and until procedure under Or. 41 Rr. 27 to 29 is followed, parties to appeal cannot be permitted to lead additional evidence and/or appellate court is not justified to direct court from whose decree appeal is preferred or any other subordinate court, to take such evidence and to send it when taken to appellate court. [H.S. Goutham v. Rama Murthy, (2021) 5 SCC 241]

Consumer Protection Act, 1986 — S. 2(1)(r) — Unfair trade practice — Terms of agreement between buyer and seller whether one-sided and the same constitutes unfair trade practice: In case, when agreement fastening liability on purchaser to pay simple interest @ 12% p.a. if he failed to pay instalments on time, whereas if seller failed to hand over possession on time he would have to pay compensation @ Rs 2 per square foot per month for period of delay, held, such condition is one-sided and constitutes unfair trade practice. [NBCC (India) Ltd. v. Shri Ram Trivedi, (2021) 5 SCC 273]

Criminal Procedure Code, 1973 — S. 319 — Object and purpose of S. 319: Principles reiterated regarding scope and ambit of powers of Magistrate under S. 319 and when additional accused may be added and “evidence” on basis of which may be added. [Sartaj Singh v. State of Haryana, (2021) 5 SCC 337]

Criminal Procedure Code, 1973 — S. 439(2) — Cancellation of bail: In this case, bail was obtained by pleading change in circumstances, but without disclosing factum of dismissal of earlier bail application. Conduct of appellant in not disclosing the fate of the earlier bail application not approved, but considering certain subsequent developments including grant of bail to co-accused, impugned cancellation order was set aside and appellant was directed to be enlarged on bail. [Jitendera Taneja v. State of U.P., (2021) 5 SCC 308]

Criminal Procedure Code, 1973 — Ss. 200 to 204 — Frivolous or vexatious complaints — Duty and powers of Magistrate/trial court in preventing abuse of court process: Trial courts have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right to liberty that every person is entitled to under Art. 21 of the Constitution. In this context, the trial Judges have as much, if not more, responsibility in safeguarding fundamental rights, as the Supreme Court. [Krishna Lal Chawla v. State of U.P., (2021) 5 SCC 435]

Environment Law — Forests, Wildlife and Zoos —Afforestation/Reforestation/Diversion/Encroachment/Illegal activity/Intrusion into Forest land/Wildlife sanctuaries/parks: Diversion of forest land for carrying out certain public welfare projects in State of H.P., permitted with and without conditions, as per directions issued herein. [T.N. Godavarman Thirumulpad v. Union of India, (2021) 5 SCC 358]

Evidence Act, 1872 — S. 32(1) — Multiple dying declarations — Evidentiary value of — Duty of court in such cases: Each dying declaration has to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of contents of the other. Court has to consider each of them in its correct perspective and satisfy itself as to which one of them or which of them reflects true state of affairs, and accordingly adjudicate the matter. [Nagabhushan v. State of Karnataka, (2021) 5 SCC 222]

Juvenile Justice (Care and Protection of Children) Act, 2000 — S. 20 Expln. — Effect of: In terms of S. 20, in all cases where the accused was above 16 yrs but below 18 yrs of age on the date of occurrence, the proceedings pending in the court would continue and be taken to the logical end subject to an exception that upon finding the juvenile to be guilty, the court would not pass an order of sentence against him but the juvenile would be referred to the Board for appropriate orders under the 2000 Act. [Devilal v. State of M.P., (2021) 5 SCC 292]

MCI Graduate Medical Education Regulations, 1997 — Regn. 6 and Note 2: Migration from an unrecognised college to a recognised college, held, is impermissible. Migration cannot be permitted contrary to the Regulations. [Medical Council of India v. Anchal Parihar, (2021) 5 SCC 417]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 37, 67, 8, 9-A, 25-A, 23 and 29 — Limitations on grant of bail under NDPS Act: In this case, there was non-application of mind by High Court to rival submissions and, particularly, to seriousness of allegations involving offence punishable under NDPS Act. It was held that merely recording submissions of parties does not amount to indication of judicial, or, for that matter, judicious application of mind by High Court to basic question as to whether bail should be granted. Provisions of S. 37 of the NDPS Act provide legal norms which have to be applied in determining whether a case for grant of bail has been made out. Herein, there has been serious infraction by High Court of its duty to apply law. High Court misapplied law to facts in arriving at decision for grant of bail to respondent-accused. Consequently, bail granted by High Court to respondent, stood cancelled. [Union of India v. Prateek Shukla, (2021) 5 SCC 430]

National Green Tribunal Act, 2010 — S. 16 proviso — Appeal — Delay — Condonation of — NGT’s refusal to exercise discretion — “Sufficient cause” not construed liberally by NGT — Legality: An appeal to NGT in matters like environmental clearance for construction of Greenfield international airport is no ordinary matter. It has potential of irrevocably changing environment with possibility of likely injury. Application of judicial mind by an independent tribunal in such cases, at first appellate stage, is almost a necessity. [Sridevi Datla v. Union of India, (2021) 5 SCC 321]

Negotiable Instruments Act, 1881 — Ss. 139 and 118: Presumption in case of voluntarily signed blank cheque leaf as to legally enforceable debt, held, available against the accused even in case when he voluntarily signed and handed over a blank cheque leaf towards some payment. [Kalamani Tex v. P. Balasubramanian, (2021) 5 SCC 283]

Rights of Persons with Disabilities Act, 2016 — Ss. 2(r), 2(s), 2(zc), 2(y) and 20: Principle of reasonable accommodation, discussed. Intrinsic to individual dignity is recognising worth of every person as equal member of society, respect for dignity of others and fostering conditions in which every individual can evolve according to his capacities. Principle of reasonable accommodation acknowledges that if disability as a social construct must be remedied, conditions must affirmatively be created for facilitating development of disabled i.e. it is founded in norm of inclusion. Exclusion negates individual dignity and worth. Accommodation implies positive obligation to create conditions conducive to growth and fulfilment of disabled in every aspect of their existence. Accommodation which law mandates is “reasonable” since it has to meet requirement of each condition of disability. Expectations of disabled person are unique to nature of his disability and character of impediments encountered as its consequence. Reasonable accommodation determinations must be based on case-to-case basis in consultation with disabled person concerned. [Vikash Kumar v. UPSC, (2021) 5 SCC 370]

Service Law — Penalty/Punishment — Norms/Rules/Principles: Principles explained regarding determination of the applicable norms when there are conflicting requirements in the statutory Rules and statutory Regulations. Statutory Rules which are specifically applicable to service to which employee belongs vis-à-vis statutory Regulations which provide for a more general dispensation. Moreover, statutory provision providing for framing of such specifically applicable statutory Rules also contain non obstante clause. [U.P. Milk Union & Dairy Federation Centralised Services v. Jagpal Singh, (2021) 5 SCC 259]

Service Law — Recruitment Process — Norms/Principles/Rules applicable: Special rules for specialised post are valid. Rr. 5 and 10 of U.P. Police Motor Transport Unit Subordinate Officers Service Rules, 2015, relating to appointment for the Post of Head Constable Driver, Motor Transport which is highly technical, held valid. [Rajesh Kumar Singh v. State of U.P., (2021) 5 SCC 421]

Service Law — Reinstatement/Back Wages/Arrears — Reinstatement — Parity: Direction to reinstate petitioners whose services were terminated because of errors in selection process finding that though they were beneficiaries of irregular select list, but petitioners were not responsible therefor and were appointed after completion of training and had worked for some time, held sustainable. [Anmol Kumar Tiwari v. State of Jharkhand, (2021) 5 SCC 424]

Unlawful Activities (Prevention) Act, 1967 — S. 43-A: In this case, Kerala journalist, namely, S was arrested in State of U.P. Permission to visit Kerala was sought by applicant S for seeing his mother lying in a critical condition and not likely to survive for long, the same was granted subject to certain conditions. [Kerala Union of Working Journalists v. Union of India, (2021) 5 SCC 311]

Urban Land (Ceiling and Regulation) Act, 1976 — S. 6 — Excess land — Point in time at which to be determined: As per S. 6 the determination of “excess land” is to be made considering the status of the land at the time of commencement of the principal Act, and not at the time of filing of the declaration. In this case, admittedly partition was affected after the commencement of the Act and it would not affect the validity of the determination of excess land owned by the joint family at the time of commencement of the Act. [U.A. Basheer v. State of Karnataka, (2021) 5 SCC 313]

Cases ReportedSupreme Court Cases

2021 SCC Vol. 5 Part 1

In this part read a very interesting decision delivered by the Supreme Court running into over 465 Pages which has been expertly analysed by our editors. While uphelding the validity of several provisions of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, albeit with directions given in exercise of powers under Article 142 of the Constitution of India. While so upholding the impugned amendments, the Bench expressed an observation that:

“There is nothing like a perfect law and as with all human institutions, there are bound to be imperfections. What is significant is however for the court ruling on constitutionality, the law must present a clear departure from constitutional limits.”

Short Notes: 7

Constitution of India — Art. 14 — Law enacting or modifying economic measure — Challenge to validity of — Approach of Court in such cases — Explained in detail: Wisdom of original or modified provision(s) is not subject to judicial scrutiny if provision(s) in question are otherwise compliant with the Constitution. Wider latitude given to legislature in economic matters essentially arises from separation of powers under the Constitution. Since the Insolvency and Bankruptcy Code, 2016 undoubtedly bears the brand of an economic measure upon its face, and in true spirit, being one of the most significant and dynamic economic experiments indulged in by the law giver, not by becoming servile to Parliament, but by way of time hallowed deference to the sovereign body experimenting in such matters, the Court will lean heavily in favour of such a law. [Manish Kumar v. Union of India, (2021) 5 SCC 1]

Cases ReportedSupreme Court Cases

2021 SCC Vol. 4 Part 3

Arbitration and Conciliation Act, 1996 — Pt. II and S. 20 — Law of arbitration/curial law/seat of arbitration — Determination of, by consent of parties: In this case, Cl. 67 of the contract between the parties inter alia provided that in the absence of an Arbitration Act in Bhutan, the Arbitral Tribunal shall follow/be guided by the basic principles and procedures as contained in the Indian Arbitration and Conciliation Act, 1996 while Cl. 67(vii)(a) provided that all arbitration shall be held at New Delhi, India/Thimphu, Bhutan. On 25-2-2013, the Kingdom of Bhutan enacted the Alternative Dispute Resolution Act, 2013 while on 28-7-2020, the respondent Contractor sent a notice of arbitration to the appellant Authority under Cl. 67(ii) of the Contract, and nominated its arbitrator. Since the appellant Authority had failed to appoint its arbitrator, High Court exercised its jurisdiction under S. 11 of the Indian A&C Act, 1996 and made the appointment and also directed that the two arbitrators would proceed to appoint the presiding arbitrator. Appellant Authority did not have an issue with respect to the panel of arbitrators appointed and their grievance was limited to the applicability of the Indian A&C Act, 1996 and the seat of arbitration at New Delhi. In view of the consensus arrived at between the parties, the order of High Court was modified to the extent that all disputes arising out of the agreement dt. 14-4-2009 shall be conducted in accordance with the Alternative Dispute Resolution Act of Bhutan, 2013 with the seat of arbitration at Thimphu. [Punatsangchhu-1 Hydroelectric Project Authority v. Larsen & Toubro Ltd., (2021) 4 SCC 511]

Arbitration and Conciliation Act, 1996 — Ss. 8 and 11 — Arbitration clause/agreement contained in substantive contract/instrument on which stamp duty has to be compulsorily paid: Issues referred to larger Bench of five Judges that whether the arbitration clause can be enforced/acted upon, when such substantive contract/instrument is unstamped, whilst adjudication of the rights and obligations under the underlying substantive contract cannot proceed before the deficit stamp duty is paid in accordance with law; Authority which must impound the unstamped instrument at different stages, so that the deficit stamp duty may be paid in accordance with law and adjudication of the rights and obligations under the underlying substantive contract, by the arbitrator may commence thereafter. [N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., (2021) 4 SCC 379]

Constitution of India — Art. 226 — Exercise of power under — Reasoned and independent analysis — Necessity: Technology enables Judges to bring speed, efficiency and accuracy to judicial work but prolific use of “cut-copy-paste” function should not become substitute for substantive reasoning which, in ultimate analysis is defining feature of judicial process. The fact that Judges are indeed hard pressed for time, faced with burgeoning vacancies and large caseloads acknowledged and perhaps crisp reasoning could be answer to the issue. [UPSC v. Bibhu Prasad Sarangi, (2021) 4 SCC 516]

Contempt of Court — Civil Contempt — Wilful disobedience/contumacious conduct: Conduct lacking in bona fides alone, of successful resolution applicant under Insolvency Code is insufficiency to invite the penal consequences which emanate from the exercise of the contempt jurisdiction of the Court. [AMTEK Auto Ltd. Committee of Creditors v. Dinkar T. Venkatasubramanian, (2021) 4 SCC 457]

Courts, Tribunals and Judiciary — Courts, Tribunals and Special Courts — Tribunals — Tenure of Members/Chairperson — Competent authority — Scope of judicial interference: In this case, tenure of Chairperson of Tribunal directed/specified by Government under the applicable statutory provisions which held the field at the relevant time, come to an end. Prayer for extension of tenure on ground that incumbent Chairman was the only judicial member of the Board and that there was no other judicial member, held not tenable in the light of principles laid down in Rojer Mathew, (2020) 6 SCC 1 and Madras Bar Assn., (2021) 7 SCC 369. [International Assn. for Protection of Intellectual Property (India Group) v. Union of India, (2021) 4 SCC 519]

Government Grants, Largesse, Public Property and Public Premises — Affirmative Action Schemes, Pension and Other Schemes — Pension Schemes — Generally — Different pension schemes for freedom fighters: In this case, applicant had not produced required documents as per scheme concerned, hence he was held, not entitled to pension under that scheme though he might be getting Freedom Fighter’s Pension under some other scheme. [Union of India v. A. Alagam Perumal Kone, (2021) 4 SCC 535]

Insolvency and Bankruptcy Code, 2016 — Ss. 7 & 9 and S. 238 — Petition under S. 7 or S. 9 IBC — Maintainability of, even when there exists an admitted winding-up petition regarding the same company: IBC has overriding effect over winding-up provisions of the Companies Act, including S. 446 of the Companies Act, 1956/S. 279 & S. 434(1)(c) of the Companies Act, 2013. (1) Pendency of admitted winding-up proceedings, thus held, not a bar to S. 7 or S. 9 IBC petitions, as the latter are independent and overriding proceedings. (2) Transfer of such pending admitted winding-up petition to NCLT for adjudication under IBC, further held, is not the only route to IBC in such case, as S. 7 or S. 9 IBC petition are independent proceedings and IBC has overriding effect over winding-up provisions of the Companies Act. (3) Fresh petition under S. 7 or S. 9 IBC, or, transfer of pending admitted winding-up petition to NCLT under IBC, are subject only to: (i) test of irreversible/irretrievable act(s)/stage having been done or reached in the winding-up proceedings as laid down in Action Ispat, (2021) 2 SCC 641, or, (ii) where a company in winding up is near corporate death. These have to be determined in the facts and circumstances of each case, and an irresistible conclusion reached in this regard. (4) Irreversible/irretrievable act(s)/stage in the winding-up proceedings, clarified, must be act(s) or stage in or of the winding-up proceedings themselves. Sale of property of corporate creditor/company which is under winding-up proceedings by secured creditor who stood outside the winding-up proceedings, held, is not irreversible/irretrievable act/stage in the winding-up proceedings themselves, hence, not a bar to fresh petition under S. 7 or S. 9 IBC. (5) Fresh S. 7 or S. 9 IBC petition being an independent proceeding having overriding effect over winding-up provisions of the Companies Act, and which has to be determined on its own merits, held, it is irrelevant that pendency of winding-up proceedings was suppressed in S. 7 or S. 9 IBC application, nor would such act be a subterfuge. [A. Navinchandra Steels (P) Ltd. v. Srei Equipment Finance Ltd., (2021) 4 SCC 435]

Insolvency and Bankruptcy Code, 2016 — Ss. 9 and 8 — Application under S. 9 by operational creditor — Prerequisites for: In this case, operational creditor failed to prove operational debt and its default and there was a pre-existing dispute as to existence of such debt. Disputes raised by corporate debtor prior to receipt of demand notice and the demand notice also replied to within the statutory prescribed period of 10 days. The Supreme Court held that application under S. 9 was rightly rejected by NCLT and NCLAT. [Allied Silica Ltd. v. Tata Chemicals Ltd., (2021) 4 SCC 515]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 20 — Acquittal of co-accused: Claim of parity is not available to the appellant, when unlike the appellant, none of the co-accused were apprehended at the spot and no evidence produced to connect them with the alleged offence. Contrarily, not only was appellant apprehended at the spot of the incident but also found in conscious possession of the contraband. [Sk. Sakkar v. State of W.B., (2021) 4 SCC 483]

Reservation, Concession, Exemption, Relaxation and Affirmative Action — Migration of Category: Candidates belonging to vertical reservation categories are entitled to be selected in “Open or General” category on basis of their merit and in such circumstances their selection cannot be counted against their respective quota for vertical reservation. In case of migration to open category based on merit, manner in which vertical reservation and horizontal reservation are to be applied, explained in detail. [Saurav Yadav v. State of U.P., (2021) 4 SCC 542]

Rights of Persons with Disabilities Act, 2016 — Ss. 2(5) and 2(zc) r/w S. 2(i) of the 1995 Act — Dilated Cardiomyopathy — Whether disability: S. 2(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, taking into account visual disability, locomotor disability, mental illness, mental retardation, hearing impairment and leprosy but not heart ailment. Under S. 2(s) of the 2016 Act, “a person with disabilities” is defined as a person with long term physical, mental, intellectual or sensory impairment which prevented his full and effective participation in society. S. 2(zc) defines “specified disability” as those mentioned in Schedule to the 2016 Act which envisage “physical disability”, “intellectual disability” and “mental behaviour”. Dilated Cardiomyopathy condition neither specified disability her relatable to broad spectrum of impairments, which hinders full and effective participation in society. Thus, Dilated Cardiomyopathy condition of appellant does not bring his case either within ambit of 1995 Act or the 2016 Act. [Nawal Kishore Sharma v. Union of India, (2021) 4 SCC 487]

Service Law — Pension — Cut-off date/point — Validity and binding effect of — Scope of judicial review — Freedom of employer to introduce new schemes and benefits having regard to its financial health: In this case,  Pension scheme was introduced vide Noti. dt. 6-10-1995 w.e.f. 5-6-1995 i.e. the date on which scheme was approved by Cabinet/Government. Respondent Union employees retiring prior to 5-6-1995 and governed by CPF scheme, held not entitled to pension under pension scheme in question. [Himachal RTC v. Retired Employees Union, (2021) 4 SCC 502]

Service Law — Police — Recruitment Process — Post of Police Sub-Inspector: Recruitment over and above notified vacancies, not permissible. [Gajanan Babulal Bansode v. State of Maharashtra, (2021) 4 SCC 494]

Cases ReportedSupreme Court Cases

Constitution of India — Art. 226 — PIL: In this case there were allegations that PIL writ petition before High Court in this case was initiated at instance of SLP petitioner herein and others mala fide, and with vested interest, etc. Enquiry to determine that whether the audio recording on pen drive of alleged mobile phone conversation between SLP petitioner and intervener in the PIL writ petition submitted the High Court is authentic and genuine, at instance of retired Supreme Court Judge directed by High Court. Continuance of such enquiry, held not warranted once SLP petitioner had admitted the conversation and submitted transcript thereof in Court on affidavit. Further, directed that in event High Court intends to refer to said transcript while disposing of main writ petition, same can be done only after granting opportunity to SLP petitioner. [V. Eswaraiah v. Union of India, (2021) 4 SCC 231]

Criminal Procedure Code, 1973 — S. 319 — Summoning of additional accused: Exercise of powers and requisite test that needs to be applied by the courts, reiterated. [Ajay Kumar v. State of Uttarakhand, (2021) 4 SCC 301]

Evidence Act, 1872 — S. 118 — Child witness: Legal principles regarding evidentiary value, effect of discrepancies, duty of court and corroboration when necessary, summarized. [Hari Om v. State of U.P., (2021) 4 SCC 345]

Forest (Conservation) Act, 1980 — S. 2 — Restriction on de-reservation of forests: Provisions of S. 2 mandate strict and punctilious compliance therewith. Mere substantial compliance is not enough. Any construction made on forest land or its utilisation for “non-forest purposes” which is violative of Forest (Conservation) Act, 1980 and therefore illegal, liable to be demolished. [H.P. Bus-Stand Management & Development Authority v. Central Empowered Committee, (2021) 4 SCC 309]

Income Tax Act, 1961 — Ss. 80-IA and 80-AB: Deduction under S. 80-IA is not restricted to “business income” alone i.e. applicable to “income from other sources” as well. It is clarified that provisions contained in Ss. 80-AB and 80-IA(5) do not curtail such view. [CIT v. Reliance Energy Ltd., (2021) 4 SCC 237]

Transfer of Property Act, 1882 — S. 40 Pt. II and S. 54 — Agreement for sale — Whether genuine — Determination of: Where the disputed will and the agreement for sale cannot be analysed independent of each other, the agreement for sale is as invalid and untrustworthy as the will. [Venigalla Koteswaramma v. Malampati Suryamba, (2021) 4 SCC 246]

Cases ReportedSupreme Court Cases

Foreword to Anomalies in Law and Justice: A tribute to Justice Raveendran and an introduction to the book “Anomalies in Law & Justice” by Justice R.V. Raveendran, former Judge, Supreme Court of India. [Foreword to Anomalies in Law and Justice by M.N. Venkatachalaiah, (2021) 4 SCC (J-1)]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 53 and 53-A: Officers empowered under S. 53, are police officers for the purpose of attracting bar under S. 25 of the Evidence Act, 1872 against admissibility of confession to a police officer. Hence, any confessional statement made to officers empowered under S. 53 cannot be taken into account in order to convict an accused, except to the extent found “relevant” under S. 53-A, and, when corroborated in accordance with law. Ss. 53 and 53-A of the NDPS Act, when read together, make it clear that S. 53-A is in the nature of an exception to Ss. 161, 162 and 172 CrPC. However, statements made before the officer empowered under S. 53 of the NDPS Act, even when “relevant” under S. 53-A, cannot, without corroborating evidence, be the basis for the conviction of an accused. [Tofan Singh v. State of T.N., (2021) 4 SCC 1]

Cases ReportedSupreme Court Cases

SCC Issue dated April 14th, 2021 (Vol. 3 Part 5)

In this part read a very interesting article Existence and Mortgageability of Equitable Estates in Immovable Property in Indian Law – I, (2021) 3 SCC J-25 by Mr Sudeep Malik, Associate Editor, Supreme Court Cases. The author discusses the question “Whether a property can be equitably mortgaged by depositing documents which may not be title deeds or registered document of title? “ which was referred to 3-Judge Bench of Supreme Court in Syndicate Bank v. APIIC, (2021) 3 SCC 736.

Civil Procedure Code, 1908 — Or. 23 R. 3 and Ss. 151 and 96(3) — Consent decree — Modification or alteration of, by court — When permissible: It is settled law that consent decrees are intended to create estoppels by judgment against the parties, thereby putting an end to further litigation between the parties and it would be slow to unilaterally interfere in, modify, substitute or modulate the terms of a consent decree, unless it is done with the revised consent of all the parties thereto. However, this formulation is far from absolute and does not apply as a blanket rule in all cases and a consent decree would not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. Court in the exercise of its inherent powers may also unilaterally rectify a consent decree suffering from clerical or arithmetical errors, so as to make it conform with the terms of the compromise. [Compack Enterprises (India) (P) Ltd. v. Beant Singh, (2021) 3 SCC 702]

Constitution of India — Art. 21 r/w Pt. III — Liberty guaranteed by Pt. III — Scope of: Liberty guaranteed by Pt. III of the Constitution covers within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. When a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge accused on bail regardless of statutory restrictions imposed on right to bail by provisions like S. 43-D(5) of the UAPA. [Union of India v. K.A. Najeeb, (2021) 3 SCC 713]

Consumer Protection Act, 1986 — S. 13(2)(a): Limitation period for filing response or written statement in reply to complaint, by respondent/opposite party, mandatorily cannot be extended beyond prescribed period of 45 days (i.e. period of 30 days along with discretionary extension of time up to 15 days) by Consumer Fora. [Daddy’s Builders (P) Ltd. v. Manisha Bhargava, (2021) 3 SCC 669]

Consumer Protection Act, 1986 — Ss. 13(2)(a), 18 and 22 — Power of Consumer Fora to extend time for filing written statement/reply to complaint beyond stipulated period of 45 days: In this case as the matter was pending decision of larger Bench on the said issue, direction issued that it would be open to Consumer Fora concerned to accept written statement filed beyond stipulated time of 45 days in an appropriate case, on suitable terms, including payment of costs, and to proceed with matter. [Reliance General Insurance Co. Ltd. v. Mampee Timbers and Hardwares (P) Ltd., (2021) 3 SCC 673]

Courts, Tribunals and Judiciary — Judicial Process — Recusal by Judge: Recusal by Judge is not warranted when on an earlier occasion first application filed by applicant for the very same relief as in present application was dismissed by the Bench in which one of the Judges of present Bench was present on the earlier occasion as well. Litigant cannot be permitted to browbeat Court by seeking Bench of its choice. [Neelam Manmohan Attavar v. Manmohan Attavar, (2021) 3 SCC 727]

Criminal Procedure Code, 1973 — S. 311 — Power to summon material witness, or examine person present: Principles summarised regarding object and scope of S. 311 and power and duties of court while exercising discretion under S. 311 CrPC. [V.N. Patil v. K. Niranjan Kumar, (2021) 3 SCC 661]

Criminal Procedure Code, 1973 — S. 439 r/w S. 41 — Interim bail: In this case, there was absence of compliance with procedure contained in S. 41 CrPC before arresting the petitioner. Same taken as factor for directing release of petitioner, a stand-up comedian, on ad interim bail by staying impugned judgment of High Court by which it declined bail to the petitioner involved in offences under Ss. 295-A, 298, 269 and 188/34 IPC, wherein complainant had alleged that jokes made by petitioner had outraged religious sentiments of the complainant and those similarly situated. [Munawar v. State of M.P., (2021) 3 SCC 712]

Criminal Procedure Code, 1973 — S. 482 — Quashment of proceedings under Ss. 419, 420, 323, 504 and 506 IPC: It was held that this case was fit for High Court to exercise jurisdiction under S. 482 CrPC and to quash criminal proceedings against accused under Ss. 419 and 420 IPC as it could not be said that averments in FIR and allegations in complaint against appellant constituted offences thereunder. But, regarding proceedings under Ss. 323, 504 and 506 IPC, High Court has rightly not quashed such proceedings, which shall be continued as per charge-sheet and shall be disposed of in accordance with law, on their own merits. [Archana Rana v. State of U.P., (2021) 3 SCC 751]

Existence Of Arbitration Agreement: This article seeks to examine the scope and purport of Section 7(4)(c) of the Arbitration and Conciliation Act, 1996 which stipulates that an arbitration agreement is deemed to be in writing if it is contained in an exchange of statement of claim and defence wherein the existence of arbitration agreement is alleged by one party and not denied by the other. In order to accomplish the aforesaid objective, the authors first examined the legislative history of Section 7 of the Act resulting in its enactment. Thereafter, the authors briefly examined the divergent views expressed by the High Courts and the Supreme Court of India on the scope and meaning of Section 7(4)(c) of the Act. The authors concluded by summarising their views on the true scope and purport of the said sub-section. Section 7(4)(C) Of The Arbitration And Conciliation Act, 1996: Acquiesence By Silence? By M. Dhyan Chinnappa & Rohan Tigadi, [(2021) 3 SCC (J-32)]

Hindu Marriage Act, 1955 — S. 13(1)(i-a) — “Mental cruelty” — Grant of divorce on ground of — Factors to be considered: For considering dissolution of marriage at instance of a spouse who alleges mental cruelty, result of such mental cruelty must be such that it is not possible to continue with matrimonial relationship. In other words, wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. Degree of tolerance will vary from one couple to another and court will have to bear in mind background, level of education and also status of parties, in order to determine whether cruelty alleged is sufficient to justify dissolution of marriage, at instance of wronged party. [Joydeep Majumdar v. Bharti Jaiswal Majumdar, (2021) 3 SCC 742]

Land Acquisition Act, 1894 — Ss. 28-A, 4(1) and 23(1-A) — Redetermination of compensation: Claimant whose lands were acquired by a common notification, held, is entitled to enhanced compensation awarded by civil court to other landowners in same survey number. [Murali v. State of Kerala, (2021) 3 SCC 747]

Mortgage by deposit of title deeds: In this article, the author reflects upon several legal aspects relating to the issue raised before Supreme Court in Syndicate Bank v. APIIC, (2021) 3 SCC 736 regarding if a property can be equitably mortgaged by depositing documents which may not be title deeds or registered document of title. The author proposed some propositions in the matter. Those propositions are to be substantiated with statutory and case law analysis in several forthcoming articles in the SCC Journal Section by the author. Existence and Mortgageability of Equitable Estates in Immovable Property in Indian Law – I, by Sudeep Malik [(2021) 3 SCC (J-25)]

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 — Ss. 6, 23 and 27 — Offences under the 1994 Act — Bail: In this case, accused and one other were found involved in pre-natal sex determination and abortion of female foetuses at their residence, without required registration or licence under law. There was sufficient evidence to hold that there is strong prima facie case against appellant-accused herein and that she had more active role in conducting alleged illegal medical practices of sex determination and sex-selective abortion as compared to other co-accused. Therefore, it is imperative that no leniency should be granted at instant stage. Thus, order of High Court denying bail to appellant-accused, confirmed. [Rekha Sengar v. State of M.P., (2021) 3 SCC 729]

Prevention of Corruption Act, 1988 — Ss. 7, 13(2) and 13(1)(d) — Illegal gratification: Mere recovery of tainted money in absence of any proof of demand and acceptance, cannot be said to be sufficient to convict the accused. [N. Vijayakumar v. State of T.N., (2021) 3 SCC 687]

Service Law — Departmental Enquiry — Enquiry Procedure — Issue of show-cause notice indicating proposed punishment of compulsory retirement before furnishing enquiry report — Legality of: After enquiry officer records his findings, it is always open for disciplinary authority to arrive at tentative conclusion of proposed punishment and it can indicate same to delinquent employee enclosing copy of enquiry report. [Boloram Bordoloi v. Lakhimi Gaolia Bank, (2021) 3 SCC 806]

Service Law — Judiciary — Recruitment process — Notification of vacancies — Periodicity with which to be made: While harmonising R. 7(2) of the Kerala Judicial Service Rules, 1991 with Malik Mazhar Sultan (3), (2008) 17 SCC 703, held, once process of selection is annual, notification of probable or anticipated vacancies must be for the selection year. Recruitment over and above notified vacancies, not permissible. [High Court of Kerala v. Reshma A., (2021) 3 SCC 755]

Specific Relief Act, 1963 — S. 38: In this case, suit for permanent injunction to restrain defendants from disturbing peaceful possession and enjoyment of plaintiff over the suit property was filed. Peaceful possession of the suit property by plaintiff was established on record and admitted by defendant. There being no dispute as to title, nor plaintiff raising any issues as to its title in the suit, as defendant’s prior suit for declaration of title and possession of the suit property standing dismissed and such dismissal attaining finality. [A. Subramanian v. R. Pannerselvam,(2021) 3 SCC 675]

Speedy resolution of arbitral disputes: In this article, the author states that while adjudicating appeals under Section 37, the Courts ought to be circumspect before condoning long delays, considering the objective of expeditious disposal of disputes under the Arbitration Act and prejudice being caused to the non-defaulting party. Appeal Under Section 37 Of The Arbitration And Conciliation Act, 1996 — To Condone Or Not To Condone Delay Beyond 120 Days, That Was The Question! By Sidharath Goyal [(2021) 3 SCC (J-56)]

Transfer of Property Act, 1882 — Ss. 58(f) & 96 and Ss. 40 Pt. II, 53-A & 54 — Mortgage by deposit of title deeds: In this case it was held that reference of the question regarding if a property can be equitably mortgaged by depositing documents which may not be title deeds or registered document of title, to present larger Bench, not required to be answered in the peculiar facts and circumstances of the case, as allotter is estopped from challenging the mortgage sale of the property in question by the mortgagee Bank, as it had itself issued the permission to create a charge on the property in question, even though the allottee had only been issued an allotment letter. [Syndicate Bank v. A.P. Industrial Infrastructure Corpn. Ltd., (2021) 3 SCC 736]

Violation of fundamental rights by a judicial order: The protection and enforcement of fundamental rights and freedoms is both the power and duty of the courts and the grant of appropriate remedy is not discretionary but obligatory. This article discusses the issues regarding violation of fundamental rights by a judicial order and remedies against it. Courts — Guardian Of Our Liberties: Judicial Orders Can Violate Fundamental Rights? By V. Sudhish Pai [(2021) 3 SCC (J-44)]

Cases ReportedSupreme Court Cases

SCC Issue dated April 14th, 2021 (Vol. 3 Part 4)

In this part, read the important judgment on right to life and liberty, deftly analysed by our editors in over 7 shortnotes, where the Supreme Court has held that custodial violence involving police atrocities which resulted in passing away of the deceased is a crime against humanity and a clear violation of rights guaranteed  under Article 21. It is held that permission for compounding such offence cannot be granted by the court, regardless of any settlement entered into by the parties.  [Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529]

Short Notes: 8

Constitution of India — Art. 21 — Offences involving police brutality/atrocities and which are compoundable with permission of court: Permission for compounding of such offences involving police brutality/atrocities cannot to be granted by court. When the police is a violator of the law whose primary responsibility is to protect the law, the punishment for such violation has to be proportionately stringent so as to have effective deterrent effect and instil confidence in the society. Offences involving police brutality are crimes not against the victim alone but against humanity and a clear violation of rights guaranteed under Art. 21. Thus, permission for compounding of such offences cannot be granted by court, regardless of any settlement entered into by the parties. [Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529]

Recovery of Debts and Bankruptcy Act, 1993 — S. 21 and proviso thereto — Condition of pre-deposit under S. 21 — Mandatory nature of: Discretion of DRAT to reduce pre-deposit amount from 50% of debt due, held, is limited to reducing the pre-deposit to 25% thereof. The pre-deposit cannot under any circumstances be reduced below 25% of the debt due. [Kotak Mahindra Bank (P) Ltd. v. Ambuj A. Kasliwal, (2021) 3 SCC 549]

Civil Procedure Code, 1908 — S. 89: True intendment of S. 89 is legally arrived at settlement of disputes outside court without intervention of courts, and not necessarily by only the modes prescribed in S. 89, nor necessarily upon direction of court. Settlement of disputes outside court and refund of court fees is permissible even in cases in which parties, without any reference by court, privately agree to settle their dispute outside modes contemplated under S. 89 CPC and such settlement is legally arrived at. [High Court of Madras v. M.C. Subramaniam, (2021) 3 SCC 560]

Constitution of India — Sch. VII List I Entry 23 and List II Entry 13 and Arts. 246, 73, 257 and Pt. XI Ch. II (Arts. 256 to 263) — Legislative and Executive power of Union under List I Entry 23 i.e. in respect of highways designated as national highways: Provisions of the Constitution unambiguously indicate that legislative as well as executive power regarding all matters concerning and connected with highways designated as national highways, vest exclusively in Union and are governed by laws made by Parliament alone in that regard. For the same reason, complete executive power in respect of highways designated as national highways also vests with Union, including the power to acquire land therefor and construct and develop the same. Further, Chapter II of Part XI of the Constitution dealing with administrative relations between Union and States makes it amply clear that executive power of every State shall be so exercised as to ensure compliance with laws made by Parliament and any existing laws which apply in that State, and executive power of Union shall extend to giving of such directions to a State as may appear to Government of India to be necessary for that purpose. Hence, Union also has the power to issue directions to State Government concerned for the development of national highways, in accordance with the National Highways Act, 1956. [Project Implementation Unit v. P.V. Krishnamoorthy, (2021) 3 SCC 572]

Cases ReportedSupreme Court Cases

SCC Issue dated April 7th, 2021 (Vol. 3 Part 3)

In this part read a very important decision delivered by the Supreme Court running into over 90 pages which have been expertly analysed by our editors. Supreme Court has discussed the mode of dealing with withheld securities of a defaulting member by National Stock Exchange of India/National Securities Clearing Corporation Limited, consequent to his expulsion.[Rusoday Securities Ltd. v. National Stock Exchange of India Ltd., (2021) 3 SCC 401]

Short Notes: 4

Advocates before the Court:

For appellants:  Senior Advocate Siddhartha Mitra and Advocates-on-record Ashok Mathur and Devashish Bharuka

For Respondent(s): Senior Advocate Shyam Divan and Adocates-on-Record. S. S. Shroff, Rabin Majumder, Bhargava V. Desai

Civil Procedure Code, 1908 — Or. 14 R. 2 — Framing of preliminary issue — Issues in regard to maintainability of suit: Framed issues relating to maintainability of suit, held, if taken up and decided by trial court as preliminary questions of law would cause no prejudice to appellant-plaintiff. [Santosh Kumar v. Ashok Chand, (2021) 3 SCC 385]

Constitution of India — Art. 21: Right to marry person of one’s choice is integral to Art. 21. Autonomy of an individual inter alia in relation to family and marriage is integral to the dignity of the individual. Training programme to be devised, and guidelines to be issued by police authorities in this regard. [Laxmibai Chandaragi B. v. State of Karnataka, (2021) 3 SCC 360]

Education Law — Professional Colleges/Education — Medical and Dental Colleges — Establishment, Running, Closure and Nationalisation of Medical/Dental Colleges — Affiliation/Recognition — Purpose of/Entitlement to/Prerequisites for/Competent Authority/Time-Schedule: In this case, denial of permission to College to admit students for particular academic years, held, fully justified, as College concerned had not utilised opportunities given to it to rectify deficiencies, and on the relevant date, as per time-schedule fixed in respect of permissions to be granted for the next academic year, application for renewal of permission had not been filed in time. [Chintpurni Medical College & Hospital v. Union of India, (2021) 3 SCC 374]

Family and Personal Laws — Judicial Intervention/Family Courts/Judges/Officers — Alternative Dispute Resolution/Mediation/Conciliation/Compromise — Mediation — Matrimonial dispute: In this case, there was reference to mediation on consent of counsel. Directions were issued as to expenses and interaction of child with parent and family of parent whose custody it was not in. [Roopsi Varun Gupta v. Varun Vikram Gupta, (2021) 3 SCC 373]

Insolvency and Bankruptcy Code, 2016 — Ss. 5(7) and 5(8), 43, 45(2), 49, 50 and Ss. 7 to 9 — Financial creditor — Who is: Collusive/Sham transactions cannot amount to “financial debts” under IBC. Under S. 5(7) a person can be categorised as a financial creditor if a financial debt is owed to it. S. 5(8) stipulates that the essential ingredient of a financial debt is disbursal against consideration for the time value of money. A transaction which is sham or collusive would only create an illusion that money has been disbursed to a borrower with the object of receiving consideration in the form of time value of money, when in fact the parties have entered into the transaction with a different or an ulterior motive i.e. the real agreement between the parties is something other than advancing a financial debt. Further, IBC recognises that for the success of an insolvency regime, the real nature of the transactions has to be unearthed in order to prevent any person from taking undue benefit of its provisions to the detriment of the rights of legitimate creditors. [Phoenix ARC (P) Ltd. v. Spade Financial Services Ltd., (2021) 3 SCC 475]

Land Acquisition Act, 1894 — Ss. 11, 4, 6 and 18 — Acquisition of land: In this case of dispute over approval of award and reopening of acquisition proceedings, approval of award supported by material on the record, compensation paid thereunder and possession of the land handed over to the Government. Resultantly, reopening of acquisition proceedings by way of re-notification of the already acquired land under S. 4 of the LA Act by the Government, reiterated, is not permissible. Furthermore, as award had been approved before coming into force of the 2013 Act, S. 24(1)(a) of the 2013 Act would not be applicable. [Assam Industrial Development Corpn. Ltd. v. Gillapukri Tea Co. Ltd., (2021) 3 SCC 388]

Penal Code, 1860 — S. 302 and S. 53 Secondly: Imposition of sentence of life imprisonment by trial court with direction that it shall be for remainder of natural life, held, not permissible. Such power of imposing a fixed term of imprisonment, or for the remainder of natural term of life of convict, while imposing a sentence of life imprisonment, held, is available only to High Court and Supreme Court, and not the trial court. [Gauri Shankar v. State of Punjab, (2021) 3 SCC 380]

Penal Code, 1860 — S. 302 or S. 304 — Murder or culpable homicide — Death due to septicaemia: There is no absolute proposition of law that in all cases where deceased died due to septicaemia, case would fall under S. 304. The same has to be determined in the facts and circumstances of each case. [Khokan v. State of Chhattisgarh, (2021) 3 SCC 365]

SEBI (Stockbrokers and Sub-Brokers) Regulations, 1992 — Circular dt. 19-5-1997 issued by NSCCL and adopted by Exchange, prescribing trading/exposure limits coupled with sanctions for non-compliance i.e. operational parameters — Vires of: In this case, Circular in question pertained to trading/exposure limits coupled with sanctions in case of non-compliance and the Exchange adopted the circular from the Clearing Corporation and notified it in the form of operational parameter. The Supreme Court held that the legislature has bestowed upon the Exchange sufficient freedom of action to effectively control and regulate the functioning of stockbrokers who use the Exchange as a means to enter into financial relationships with the investors and common public. Further, this freedom of action is guaranteed in the preapproved Bye-laws which enable the Exchange to frame Regulations, instructions, operational parameters, notice, etc. and bring them into force without subjecting them to any added condition of prior approval of the Central Government/SEBI. The only limitation on this power of the Exchange is that such Regulations or operational parameters issued under the Bye-laws are subject to the 1956 Act, the 1992 Act and the Rules framed thereunder. Further, rejecting the challenge to the legal sanctity of the circular, held, since the Bye-laws and Rules of the Exchange are duly approved by the Central Government/SEBI, it can safely be stated that actions taken by the Exchange under the Bye-laws or Regulations. By prescribing such operational parameters in the form of a circular and in consequence thereof would assume enforceable character. [Rusoday Securities Ltd. v. National Stock Exchange of India Ltd., (2021) 3 SCC 401]

Transfer of Property Act, 1882 — Ss. 122 and 123 — Gift of immovable property when becomes complete — Acceptance of gift: Acceptance by or on behalf of donee must be made during lifetime of donor and while he is still capable of giving. Execution of gift deed registered and attested in accordance with S. 123 TPA, and acceptance of such gift make gift of immovable property complete. Thereafter, donor is divested of the title or interest being gifted, and donee becomes owner of the gifted property, estate or interest. [Daulat Singh v. State of Rajasthan, (2021) 3 SCC 459]

Cases ReportedSupreme Court Cases

SCC Issue dated April 7th, 2021 (Vol. 3 Part 2)

In this part read a very important decision delivered by the Supreme Court with respect to Consumer Protection Act which was expertly analysed by our editors in over 7 short notes. Supreme Court observed that “Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the Apartment Buyer‘s Agreement.”[IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241]

Short Notes: 7

Constitution of India — Arts. 32, 21, 19(1)(a) and (2) — Multiple FIRs against anchor of news debate show, on grounds of fomenting hatred amongst communities/hate speech — Interim stay and other directions — When warranted: In this case, ad interim stay was imposed on instituted criminal proceedings and possible FIRs relating to same telecast. Notice was issued and petitioner was directed to implead complainants and serve notice on newly added respondents. [Amish Devgan v. Union of India, (2021) 3 SCC 306]

Consumer Protection — Cause of Action — Unfair trade practice — Directions, declaration and relief that may be granted by Consumer Forums in case of: S. 14 of the CPA, 1986 empowers Consumer Fora to redress deficiency of service by issuing directions to opposite party, and compensate consumer for loss or injury caused by opposite party, or discontinue unfair or restrictive trade practices. Even under the CPA, 1986, powers of Consumer Fora are in no manner constrained to declare a contractual term as unfair or one-sided as an incident of power to discontinue unfair or restrictive trade practices. An “unfair contract” has been defined under the CPA, 2019, and powers have been conferred on State Consumer For a and National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which is implicit under the CPA, 1986. [IREO Grace Realtech (P) Ltd. v. Abhishek Khanna, (2021) 3 SCC 241]

Designs Act, 2000 — S. 22(4) — Jurisdiction of court: Jurisdiction over infringement suits in which defendant seeks revocation of registration of design vests in High Court under S. 22(4) of the 2000 Act, even when the High Court does not exercise original side jurisdiction. Operation of S. 22(4) of the 2000 Act is not affected by the Commercial Courts Act, 2015. [S.D. Containers v. Mold-Tek Packaging Ltd., (2021) 3 SCC 289]

Evidence Act, 1872 — S. 92 Proviso (6) r/w Ill. (f) and Ss. 94 and 95 — Entirety of correspondence, as opposed to a single/some correspondence(s): When there are a number of documents exchanged between the parties in the performance of a contract, all of them must be read as a connected whole, relating each particular document to “existing facts”, which include how particular words are used in a particular sense, given the entirety of correspondence between the parties. Further, after the application of Proviso (6) to S. 92, the adjudicating authority must be very careful when it applies provisions dealing with patent ambiguity, as it must first ascertain whether the plain language of a particular document applies accurately to existing facts. If, however, it is ambiguous or unmeaning in reference to existing facts, evidence may then be given to show that the words used in a particular document were used in a sense that would make the aforesaid words meaningful in the context of the entirety of the correspondence between the parties. [Anglo American Metallurgical Coal Pty. Ltd. v. MMTC Ltd., (2021) 3 SCC 308]

Insolvency and Bankruptcy Code, 2016 — S. 10-A (as inserted by Ordinance 9 of 2020 promulgated on 5-6-2020 followed by Amending Act 17 of 2020) r/w Ss. 5(11), 7, 9 and 10 — Bar against filing of applications for initiation of corporate insolvency resolution process (CIRP) in relation to defaults committed on or after 25-3-2020 for a period of six months, extendable to one year — Nature of: Said bar is retrospective in nature, and is thus applicable to applications filed prior to insertion of S. 10-A i.e. prior to 5-6-2020. Use of the expressions “shall be filed” and “no application shall ever be filed”, do not affect the retrospective applicability of such bar. The language of the provision is not always decisive to arrive at a determination whether the provision is applicable prospectively or retrospectively. The substantive part of S. 10-A is to be construed harmoniously with the first proviso and the Explanation. Reading the provisions together, it is evident that Parliament intended to impose a bar on filing of applications for commencement of CIRP in respect of a corporate debtor for a default occurring on or after 25-3-2020, the embargo remaining in force for a period of six months, extendable to one year. Thus, the embargo contained in S. 10-A must receive a purposive construction which will advance the object which was sought to be achieved by enacting the provision. Further held, the (retrospective) bar on the filing of applications for the commencement of CIRP during the stipulated period does not extinguish the debt owed by the corporate debtor or the right of creditors to recover it. [Ramesh Kymal v. Siemens Gamesa Renewable Power (P) Ltd., (2021) 3 SCC 224]

Institution of criminal proceedings for sexual offences involving children: Sexual abuse has an inherent social stigma having lifelong adverse consequences for the victims, resulting in a reluctance to report the crime. The callous and unprofessional attitude of law enforcement agencies further foments self-blame and victim-shaming tendencies and breeds discontent and despair amongst victims and their families. Lack of fair and scientific investigation and unusual delay in court proceedings also results in general in acquittal of the rape accused. Pendency of cases in trial courts is very high and is growing every year. Timely reporting and registration of cases are essential requisites for instituting criminal proceedings. This article attempts to deal with various steps and intricacies involved at various stages in dealing with sexual offences involving children. Procedural road map for handling child sexual abuse under the POCSO Act, 2012,  by Dr G.K. Goswami & Aditi Goswami, (2021) 3 SCC (J-1)]

Penal Code, 1860 — S. 300 Exception 4 — Applicability of: In this case, considering relevant materials, the injuries, held, were inflicted without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the appellant having taken advantage or acted cruelly or unusually. Resultantly, the case, held, fell under S. 300 Exception 4. Thus, appellant held liable under S. 304 Pt. I. [Pardeshiram v. State of M.P., (2021) 3 SCC 238]

Punjab Village Common Lands (Regulation) Rules, 1964 — R. 12(4) [as incorporated vide Noti. dt. 3-1-2008]: Necessary requirements for sale of non-cultivable panchayat land to inhabitants of village who constructed their houses on such land as prescribed in the Rules, must strictly be complied with. In this case, claimants being in illegal occupation of panchayat land cannot, as a matter of right, claim regularization. Regularisation of the illegal occupation can only be as per the policy of the State Government and strictly as per the conditions stipulated in the Rules. Even if there is a construction the same is required to be removed and the possession of the land must be handed back to the Gram Panchayat, if the conditions for regularisation are not satisfied. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularising the illegal possession. [Joginder v. State of Haryana, (2021) 3 SCC 300]

Cases ReportedSupreme Court Cases

SCC Issue dated March 28th, 2021 (Vol. 3 Part 1)

In this part read a very important decision delivered by the Supreme Court in Prashant Bhushan Contempt Matter. The 82-pages judgment is expertly analysed by our editors in over 16 short notes. The Supreme Court sentenced Advocate Prashant Bhushan to pay a fine of Re 1 failing which he would have undergone imprisonment of 3 months and further be debarred from practising in the Supreme Court for 3 years.[In re: Prashant Bhushan, 2020 SCC OnLine SC 698]

Short Notes: 16

Arbitration and Conciliation Act, 1996 — S. 12(5) (as amended by the 2015 Amendment Act) r/w Sch. VII Item 5 and S. 29-A(6) — Mandatory and non-derogable nature of S. 12(5): Appointment of Principal Secretary, Government of Haryana as the nominee arbitrator of HARSAC, a nodal agency of the Government of Haryana i.e. appointment of an arbitrator having controlling influence in contravention of S. 12(5), not permissible. [Haryana Space Application Centre v. Pan India Consultants (P) Ltd., (2021) 3 SCC 103]

Central Sales Tax Act, 1956 — S. 5(2) r/w S. 3(a): Exemption under S. 5(2) i.e. regarding cases where sales take place in the course of the import of the goods into territory of India is not applicable to sales made post crossing of the customs frontiers. Meaning of the expression “sale in the course of import”, explained. Relevance of bill of lading, bill of entry and import general manifest (IGM), for ascertaining the true “importer” of goods, also discussed. [Vellanki Frame Works v. CTO, (2021) 3 SCC 39]

Competition Act, 2002 — S. 19(1) r/w Ss. 2(f), 53-B and 53-T — Locus standi to give information to CCI for CCI to initiate proceedings under the Competition Act: Contrasting the definition of “consumer” from “person”, held, the definition of “person” in S. 2(l) of the Competition Act, is an inclusive one and is extremely wide and includes individuals of all kinds and every artificial juridical person. Further, consequent upon the substitution of the expression “receipt of a complaint” with the expression “receipt of any information in such manner and” in S. 19(1) of the Competition Act, held, whereas a complaint could be filed only from a person who was aggrieved by a particular action, information may be received from any person, obviously whether such person is or is not personally affected and this is for the reason that the proceedings under the Competition Act are proceedings in rem which affect the public interest. Further, a “person aggrieved” must, in the context of the Competition Act, be understood widely and not be constructed narrowly. When CCI performs inquisitorial, as opposed to adjudicatory functions, the doors of approaching CCI and the appellate authority i.e. NCLAT, must be kept wide open in public interest, so as to subserve the high public purpose of the Competition Act. [Samir Agrawal v. CCI (Cab Aggregators Case), (2021) 3 SCC 136]

Constitution of India — Art. 137 — Review — Grounds for: Change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. Review petition against Supreme Court decision on a particular issue, filed during pendency of reference of question of law pertaining to that same issue to a larger Bench is not a ground for disposal of review petition only after that decision. [Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.), (2021) 3 SCC 1]

Contempt of Court — Nature and Scope — Freedom of speech/expression and contempt of court — Balance between rights and restrictions — Scope of, especially when lawyers are contemnors: Lawyers’ noble profession will lose all its significance and charm and dignity if lawyers are permitted to make any malicious, scandalous and scurrilous allegations against the institution of which they are apart. Exercise of power under Art. 129 of the Constitution, does not interfere with the rights under Art. 19(1)(a) of the Constitution. No doubt, free speech is essential to democracy, but it cannot denigrate one of the institutions of democracy. Rights under Art. 19(1)(a) are subject to reasonable restrictions under Art. 19(2) and rights of others cannot be infringed in the process. [Prashant Bhushan, In re (Contempt Matter), (2021) 3 SCC 160]

Contract and Specific Relief — Formation of Contract — Offer and Acceptance — Invitations to offer/Counter-offers: Conditional acceptance of offer i.e. acceptance with a variation of terms of tender does not lead to a concluded contract, when such condition is not accepted. Compensation for refusal to discharge obligation/breach of contract is not grantable, in the absence of such non-concluded contract. [Padia Timber Co. (P) Ltd. v. Visakhapatnam Port Trust, (2021) 3 SCC 24]

Education Law — Employment and Service Matters Re Educational Institutions — Appointment/Recruitment — Appointment of College Hostel Warden — Competent authority — Compliance with prescribed procedure — Necessity of: In this case, competent authority for appointment of College Hostel Warden is the Governing body and not Principal of College, hence, appointment of R-1 directly made by Principal R-3 without approval of Governing Body, held invalid. [Daulat Ram College v. Asha, (2021) 3 SCC 121]

Industrial Disputes Act, 1947 — S. 11-A — Failure to hold enquiry before dismissal/discharge — Entitlement of employer to lead evidence before Labour Court/Tribunal to justify its action: Where employer fails to hold enquiry before dismissal or discharge of workman, he can justify his action by leading evidence before Labour Court. Labour Court has jurisdiction to satisfy itself on evidence adduced as to justifiability of order of discharge or dismissal. [State of Uttarakhand v. Sureshwati, (2021) 3 SCC 108]

Penal Code, 1860 — S. 366 — Kidnapping, abducting or inducing woman to compel her marriage, etc. — Ingredients of S. 366: S. 366 postulates that once prosecution leads evidence to show that kidnapping was with intention/knowledge to compel marriage of girl or to force/induce her to have illicit intercourse, enhanced punishment of 10 yrs as provided thereunder would stand attracted. [Anversinh v. State of Gujarat, (2021) 3 SCC 12]

Service Law — Pension — Entitlement to pension: In this case, the clarification of Supreme Court judgment dt. 30-1-2018 directing respondent State to pay pension to 214 eligible persons in list in accordance with pension scheme, names of appellants were included in the list. Hence held, they cannot be denied pension on ground that only those persons who retired between 11-5-1995 and 30-6-1999 would be eligible for pension. [Darshan Singh v. State of Punjab, (2021) 3 SCC 119]

Cases ReportedSupreme Court Cases

SCC Issue dated March 14th, 2021 (Vol. 2 Part 4)

Read the Supreme Court order in the suo motu matter of proper treatment of COVID-19 patients and dignified handling of dead bodies in hospitals, where the Court took note of the precarious plight of corona patients and occurence of fire in hospitals and nursing homes. Multiple set of directions concerning different aspects of treatment of COVID-19 patients, their safety and prevention of spread of corona virus were issued.[Proper Treatment of COVID-19 Patients & Dignified Handling of Dead Bodies in the Hospitals, In re., (2021) 2 SCC 519]

Constitution of India — Arts. 19(1)(a) & (2), 14, 51-A(c) & (e) and 32 — Pre-broadcast injunction, when necessary and warranted: In this case, prima facie content, tenor and object of telecast in question (to vilify a particular community) violated the Constitution and statutory provisions. High Court had also restrained the broadcast of proposed programme. The Supreme Court held that it is necessary to interdict any further telecast. Pending further orders, television channel in question injuncted from making any further telecast in continuation of or similar to the episodes which were telecast on 11- 9-2020, 12-9-2020, 13-9-2020 and 14-9-2020 either under the same or any other title or caption. [Firoz Iqbal Khan v. Union of India, (2021) 2 SCC 591]

Constitution of India — Arts. 19(1)(a) & (2), 14, 51-A(c) & (e) and 32 — Pre-broadcast injunction on the basis of an unverified transcript: In this case, allegedly, the clip to be aired contained statements derogatory of the entry of a particular community into the civil services. The Supreme Court held that Court has to be circumspect in imposing a prior restraint on publication or the airing of views. Prayer for interlocutory injunction was declined and notice was issued as matter prima facie involved violation of fundamental rights and statutory rights. There should be a balance between fundamental right to free speech and expression and the fundamental right to equality and fair treatment for every segment of citizens. [Firoz Iqbal Khan v. Union of India, (2021) 2 SCC 596] 

Constitution of India — Sch. VII List I Entry 66 and List III Entry 25: Impact of Entry 66 of List I on Entry 25 of List III must be determined by reading of Central Act and State Act conjointly. State Law providing for standards in institutions for higher education or research and scientific and technical institutions, having regard to Entry 66 of List I, would be struck down as unconstitutional only if the same is found to be so heavy or devastating as to wipe out or appreciably abridge Central field and not otherwise. When a State Act is in aid of parliamentary Act, the same would not entrench upon latter. Thus, University/State Government concerned certainly has the power to fix higher eligibility criteria than the minimum prescribed by Central Governing Body/AICTE, to achieve excellence in education. [A.P.J. Abdul Kalam Technological University v. Jai Bharath College of Mngt. & Engg. Technology, (2021) 2 SCC 564]

Criminal Procedure Code, 1973 — S. 167(2) — Default bail — Accused’s right to default bail — When becomes indefeasible — Scope of such right: The moment accused files application for bail on default of investigating agency in filing charge-sheet within prescribed period and offers to furnish bail bond as directed by court, he is deemed to have “availed of” his indefeasible right to be released on bail. “Availed of” means actual release from custody by furnishing bail and complying with terms and conditions of bail order within time stipulated by court. [M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485]

Delhi Special Police Establishment Act, 1946 (25 of 1946) — Ss. 5 and 6 — Scope of: Though S. 5 enables Central Government to extend powers and jurisdiction of Members of DSPE beyond Union Territories to a State, same is not permissible unless State grants its consent for such extension within area of State concerned under S. 6. Provisions are in tune with federal character of Constitution, which is part of the basic structure of the Constitution. [Fertico Mktg. & Investment (P) Ltd. v. CBI, (2021) 2 SCC 525]

Disaster Management Act, 2005 — S. 10 — COVID-19: Affixation of posters outside residences of persons who are COVID-19 positive and are required to stay in home isolation, held, not required as per applicable Guidelines as they currently stood. The same would become permissible only if appropriate directions/guidelines to that effect are issued by competent authority under 2005 Act. [Kush Kalra v. Union of India, (2021) 2 SCC 481]

Government Contracts and Tenders — Blacklisting/Downgrading of Contractor/Tenderer from participating in future bids — Requirements of show-cause notice to constitute valid basis of blacklisting order: For a show-cause notice to constitute the valid basis of a blacklisting order, such notice must spell out clearly, or its contents be such that it can be clearly inferred therefrom, that there is intention on the part of the issuer of the notice to blacklist the notice. Such a clear notice is essential for ensuring that the person against whom the penalty of blacklisting is intended to be imposed, has an adequate, informed and meaningful opportunity to show cause against his possible blacklisting. [UMC Technologies (P) Ltd. v. Food Corpn. of India, (2021) 2 SCC 551]

Homoeopathy Central Council Act, 1973 — Ss. 33 and 24 r/w Regn. 6 of the 1982 Regulations: Direction by High Court to authorities to take appropriate action if Homoeopathic practitioners made any advertisement or prescribed any drugs or medicines with a claim that it is a cure for COVID-19 disease, not warranted in light of statutory regulations prohibiting advertisement for solicitation of patients personally or advertisement in the newspaper, by Homoeopathic practitioners. Particularly, when only relief claimed in writ petition was to direct State Authorities concerned to allow Homoeopathic practitioners to perform in accordance with guidelines of Ministry of AYUSH to ameliorate the effects of COVID-19 Pandemic. [Dr AKB Sadbhavana Mission School of Homeo Pharmacy v. Ministry of Ayush, (2021) 2 SCC 539]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Epidemics and Pandemics — Spread of Coronavirus (COVID-19) — Precarious plight of Coronavirus Patients and occurrence of fire in hospitals and nursing homes: Multiple sets of directions concerning different aspects of treatment of COVID-19 patients, their safety and prevention of spread of COVID-19, issued. [Proper Treatment of COVID-19 Patients & Dignified Handling of Dead Bodies in the Hospitals, In re., (2021) 2 SCC 519]

Penal Code, 1860 — Ss. 302/34, 324/34, 325/34 and 323: In this case, there was assault by accused persons using weapons, leading to death of 2 persons and injuries to 3 others. Appellant-accused and 3 others whether shared common intention to murder. Injured witnesses (parents of one deceased victim) were found reliable and truthful. There was no reason why they would falsely implicate another, when deceased was their own minor son. Evidence of injured witnesses stood corroborated by medical evidence. Bloodstained lathi and bloodstained clothes of appellant were recovered on his confession and sharing of common intention to murder on the part of appellant-accused, held, was clearly evident. Hence, conviction of appellant under Ss. 302/34, stood confirmed. [Asharam Tiwari v. State of M.P., (2021) 2 SCC 608]

Penal Code, 1860 — Ss. 363 and 366-A — Quashment of proceedings against co-accused — When warranted: In this case, dismissal of quashment petition filed by co-accused after acquittal of main accused, was held not justified, when evidence of prosecutrix and complainant shows that there is no allegation whatsoever against the appellant co-accused. Hence, proceedings quashed against appellant co-accused. [Vishwas Bhandari v. State of Punjab, (2021) 2 SCC 605]

Penal Code, 1860 — Ss. 376, 376(2)(a), 376(2)(g) & 34 r/w S. 228-A (as inserted by Amendment Act 43 of 1983) — Rape victim: In this case, victim was held entitled to treatment as rape victim by all authorities for grant of compensation and other rehabilitation measures for herself and her children, such as free education for the children, housing, police security and other measures. Hence, further directions for relief and rehabilitation of victim and her children, in the facts and circumstances of the case, issued. [X v. State of Jharkhand, (2021) 2 SCC 598]

Service Law — Departmental Enquiry — Judicial review/Validity — Scope — Limited — Principles summarized: Power of judicial review exercised by constitutional courts under Arts. 32/136/226 of the Constitution is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and is not akin to adjudication of case on merits as an appellate authority. Examination by Court is limited to determining whether (i) Enquiry was held by competent authority; (ii) whether there was compliance with principles of natural justice; and (iii) whether findings were based on some evidence and whether authority had jurisdiction to arrive at conclusion. Further held, in exercise of jurisdiction of judicial review, courts would not interfere with findings of facts arrived at in disciplinary proceedings except in case of mala fides or perversity i.e. where there is no evidence to support finding or finding is such that no reasonable man could arrive at. Where there is some evidence to support finding arrived at in departmental proceedings, same must be sustained. [SBI v. Ajai Kumar Srivastava, (2021) 2 SCC 612]

Service Law — Retirement/Superannuation — Voluntary retirement — Regn. 29 of the Indian Bank Employees Pension Regulations, 1995: Rejection of request for voluntary retirement by an unreasoned order on last day of notice period, not proper. [Indian Bank v. Mahaveer Khariwal, (2021) 2 SCC 632]

Cases ReportedSupreme Court Cases

SCC Issue dated March 7th, 2021 (Vol. 2 Part 3)

In this part read a very important decision delivered by the Supreme Court and expertly analysed by our editors in over 17 short notes, wherein the Court, exercising powers under Article 142 of the Constitution, issued guidelines and directions laying down uniform and consistent standards for ensuring timely disposal of applications seeking maintenance under all the applicable statutes.[Rajnesh v. Neha, (2021) 2 SCC 324]

Short Notes: 17

Advocates who appeared in the case:

Anitha Shenoy and Gopal Sankaranarayanan, Senior Advocates (Amici Curiae)

Companies Act, 2013 — S. 434 [as substituted and amended up to Act 26 of 2018]: Transfer of winding-up proceedings from High Court to NCLT, even after the winding-up notice has been served on the respondent, permissible, provided it is at the instance of a party to the proceedings i.e. person concerned is covered under the 5th proviso to S. 434(1)(c). [Kaledonia Jute & Fibres (P) Ltd. v. Axis Nirman & Industries Ltd., (2021) 2 SCC 403]

Constitution of India — Art. 21: Duty of courts at all levels: Basic rule of our criminal justice system is “bail, not jail”. High Courts and courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving the Supreme Court to intervene at all times. Role of the district judiciary is of great importance, which provides the first point of interface to the citizen. Use of technology to monitor the pendency and disposal of cases, including criminal cases, emphasized. [Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427]

Constitution of India — Preamble and Arts. 39, 15(3) and 142 — Maintenance to wife, children and parents — Overlapping statutes — Remedy of maintenance in both secular laws and personal laws: Guidelines under Art. 142 of the Constitution laying down uniform and consistent standards and for ensuring timely disposal of applications seeking maintenance under all the applicable statutes, issued. Simultaneous operation of statutes would lead to multiplicity of proceedings and conflicting orders. This process requires to be streamlined so that the respondent-husband is not obligated to comply with successive orders of maintenance passed under different enactments. There is no inconsistency between CrPC and the Hindu Adoptions and Maintenance Act, 1956 (HAMA) and both can stand together. Though there are different enactments providing for maintenance, each enactment provides an independent and distinct remedy framed with a specific object and purpose. Provision of maintenance in secular laws like the Special Marriage Act, 1954 (SMA), S. 125 CrPC and the Protection of Women from Domestic Violence Act, 2005 (the DV Act), are irrespective of religious community to which they belong and apart from other remedies provided in personal laws like dissolution of marriage or restitution of conjugal rights, etc. Remedy of maintenance is a measure of social justice as envisaged under the Constitution to prevent wives and children from falling into destitution and vagrancy. Preamble and Arts. 39 and 15(3) of the Constitution envisage social justice and positive State action for the empowerment of women and children. [Rajnesh v. Neha, (2021) 2 SCC 324]

Environment Law — Air Pollution — Air Pollutants/Polluting Industries — Vehicular Pollution — National Auto Fuel Policy, 2003: In this case applications sought registration of three types of vehicles: (a) BS-IV CNG vehicles, (b) BS-IV compliant light and heavy-duty diesel vehicles, and (c) BS-VI compliant vehicles, being used for essential public utility services. Registration was permitted in respect of BS-IV diesel, light and heavy-duty vehicles used for public utility and essential services, where CNG, petrol variants are not available, as per the directions given herein. [M.C. Mehta v. Union of India, (2021) 2 SCC 418]

Environment Law — Air Pollution — Air Pollutants/Polluting Industries — Vehicular Pollution — National Auto Fuel Policy, 2003: In this case, applications for registration of three types of vehicles viz. (a) BS-IV CNG vehicles, (b) BS-IV compliant vehicles, and (c) BS-VI compliant vehicles for being used for essential public utility services, permitted as per the directions given herein. Furthermore, in order to avoid repeated applications before Court, EPCA directed to scrutinise the pending cases and submit a report to Court so that a common order may be passed. [M.C. Mehta v. Union of India, (2021) 2 SCC 423]

Environmental conservation and protection: In this article the author has explained the role and contribution of constitutional courts for protection and preservation of the environment. Environmental conservation and protection: Role and contribution of constitutional courts by Justice Uday U. Lalit [(2021) 2 SCC (J-17)]

Land Acquisition and Requisition — Land Acquisition Act, 1894 — Ss. 54 and 18 — Appeal against enhanced award of compensation by Reference Court: In this case, High Court order permitted claimants to withdraw 50% of 80% of amount as awarded by Reference Court, without furnishing any security. Same was modified to 25% of the entire award amount directed to be deposited by appellant, without any security, as Reference Court had enhanced amount of compensation after a period of approximately 17 yrs (by now 20 yrs), and original claimants were not in a position to furnish any security. Balance 75% of enhanced amount of compensation, together with proportionate cost and interest, as awarded by Reference Court permitted to be invested in a fixed deposit in any nationalised bank with cumulative interest. [Nayara Energy Ltd. v. State of Gujarat, (2021) 2 SCC 477]

Legitimate Interest Test: This article seeks to appreciate the contours of the “legitimate interest” test developed in the United Kingdom, study its application through various rulings handed down by Courts globally, and explores the possibility of the assimilation of the “legitimate interest” test in Indian law and the common law jurisdictions in general. The legitimate interest test (UK) on the Enforceability of liquidated damages clauses and its implications for Indian law by Aditya Shiralkar [(2021) 2 SCC (J-37)]

Non-speaking orders: In this article, the author has explained the nature and power of the Supreme Court under Article 136 of the Constitution of India to pass orders by a non-speaking order and its effect on the justice delivery system and the requirement of recording reasons while passing orders under Article 136 of the Constitution at the first stage by the Supreme Court. Dismissal of SLP under Article 136 at preliminary stage — Whether immune from passing of speaking orders? By Sanjay Bansal [(2021) 2 SCC (J-25)]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — S. 14 (as amended vide Act 44 of 2016): Time-limits stipulated in the section, are directory and not mandatory. In view of the objective of the SARFAESI Act, the time-limit to take action by the District Magistrate has been fixed to impress upon the authority to take possession of the secured assets. However, inability to take possession within time-limit does not render the District Magistrate functus officio. The secured creditor has no control over the District Magistrate who is exercising jurisdiction under S. 14 of the 2002 Act for public good to facilitate recovery of public dues. Therefore, S. 14 of the Act is not to be interpreted literally without considering the object and purpose of the Act. [C. Bright v. Distt. Collector, (2021) 2 SCC 392]

Cases ReportedSupreme Court Cases

SCC Issue dated February 28th, 2021 (Vol. 2 Part 1)

Read the significant judgment of the Supreme Court expertly analysed by our Editors in over 12 Short Notes. The Judgment held that with the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance and hence, in the scheme of the Customs Act, 1962, the Customs Tariff Act 1975 and the Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations 2018, the time at which the notification under Section 8A is published would indeed have relevance.[Union of India v. G.S. Chatha Rice Mills, (2021) 2 SCC 209]

Short Notes: 12

Accounts, Accountants and Accountancy — Chartered Accountants: In this case, by impugned guidelines, Institute of Chartered Accountants of India (ICAI) introduced a cap on number of audit assignments that can be taken up by each Chartered Accountant throughout country. Writ petitions were pending in different High Courts involving a common question of law relating to validity of the said guidelines i.e. Ch. VI of Guidelines No. 1-CA(7)/02/2008 dt. 8-8-2008 issued by Council of ICAI on ground that same is violative of Art. 19(1)(g) of the Constitution. To settle the law and to clear uncertainty among tax professionals and citizens, it was held appropriate that Supreme Court may transfer writ petition, to authoritatively pronounce law on the subject. Transfer petitions were allowed and writ petitions pending in different High Courts withdrawn to Supreme Court. [ICAI v. Shaji Poulose, (2021) 2 SCC 203]

Companies Act, 2013 — Ss. 421(3) and 420(3) — Period of limitation — Commencement of — Inter-relationship between Ss. 420(3) and 421(3) and their invocation: Under S. 421(3) period of limitation starts from day on which certified copy is made available to the aggrieved party. S. 421(3) can be invoked when aggrieved person does not apply for certified copies instead waits for it as per S. 420(3) and R. 50 of the National Company Law Tribunal Rules, 2016. If aggrieved person applied for certified copies, then S. 421(3) cannot be invoked. [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317]

Consumer Protection Act, 1986 — S. 23 — Appeal to Supreme Court — Maintainability: Execution proceedings and Original proceedings, held, are separate and independent. Appeal under S. 23 of the CP Act will not lie to Supreme Court against an order which has been passed in the course of execution proceedings. Appeal under S. 23 is maintainable against an order which has been passed by NCDRC on a complaint where value of goods or services and compensation, if any, claimed, exceeds threshold which is prescribed. Hence appeal under S. 23 of the CP Act against order in execution dismissed as being non-maintainable. [Ambience Infrastructure (P) Ltd. v. Ambience Island Apartment Owners, (2021) 2 SCC 163]

Information Technology Act, 2000 — S. 8 — Notifications in e-gazettes — Exact time of e-publication — Significance of: S. 8 creates a legal basis for the publication of laws through e-gazettes. Thus, with the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance. In this case, Noti. No. 5 of 2019 was uploaded in the e-gazette at a specific time and date, it could not apply to bills of entry which were presented on the customs automated EDI system prior to the time of uploading of the notification in the e-gazette. [Union of India v. G.S. Chatha Rice Mills, (2021) 2 SCC 209]

Motor Vehicles Act, 1988 — S. 168 — Compensation — Deduction towards personal expenses: Subsequent death of deceased’s dependant, ought not to be a reason for reduction of motor accident compensation. Claims and legal liabilities crystallise at time of accident itself, and changes post thereto ought not to ordinarily affect pending proceedings. [Kirti v. Oriental Insurance Co. Ltd., (2021) 2 SCC 166]

Service Law — Appointment — Excess appointments — Filling up of vacancies over and above number of advertised vacancies: Ordinarily appointments are to be made strictly in order of merit in terms of select list prepared by competent authority as contemplated under relevant statutory recruitment rules. Any appointment in contravention thereof would be in violation of Art. 14 of the Constitution. However, further held, any appointments made deviating from merit in exceptional cases can be justified, like in instant case viz. to give quietus to litigation. However held, such appointments would be irregular appointments, though not illegal. Hence, even if action of State in extending benefit of concession recorded vide Supreme Court order dt. 10-5-2007 was a mistake; similar benefit cannot be claimed by appellants which would perpetuate mistake. Negative equality cannot be claimed to perpetuate further illegality. [Pankjeshwar Sharma v. State of J&K, (2021) 2 SCC 188]

Service Law — Recruitment Process — Examination — Correctness of final key answers uploaded by State PSC — Scope of Judicial Review: Though re-evaluation can be directed if rules permit, but practice of re-evaluation and secreting of questions by courts which lack expertise in academic matters must be discouraged. It is not permissible for High Court to examine question papers and answer sheets itself, particularly when Commission had assessed inter se merit of candidates. Courts must show deference and consideration to recommendation of expert committee. [Vikesh Kumar Gupta v. State of Rajasthan, (2021) 2 SCC 309]

Cases ReportedSupreme Court Cases

SCC Issue dated February 14th, 2021 (Vol. 2 Part 1)

Read the decisive judgment of the three-Judge Bench in the Vidya Drolia case, dexterously analysed by our Editors in over 21 short notes. The Judgment expounds on what is arbitrable and what is not. It propounds a fourfold test for determining when claim(s) in or subject-matter of a dispute are not arbitrable; and considers non-arbitrability of various kinds of claims or subject-matter based on this fourfold test.[Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1]

Short Notes: 21

Arbitration and Conciliation Act, 1996 — Ss. 8 & 11 and Ss. 2(3) & 34(2)(b)(i) — Non-arbitrability — Meaning of, explained and discussed in detail: Arbitration being a matter of contract, the parties are entitled to fix boundaries so as to confer and limit jurisdiction and legal authority of arbitrator and though the arbitration agreement may be valid, yet Arbitral Tribunal, in view of the will of the parties expressed in arbitration agreement, may not have jurisdiction to adjudicate the dispute. There is a difference between a non-arbitrable claim and non-arbitrable subject-matter: the former may arise on account of scope of the arbitration agreement and also when the claim is not capable of being resolved through arbitration; while generally non-arbitrability of the subject-matter would relate to non-arbitrability in law. Though the A&C Act, 1996 recognises and accepts that certain disputes or subjects are not capable of being resolved by arbitration vide S. 2(3) and S. 34(2)(b)(i), it is left to the courts ex visceribus actus i.e. from the very essence of the Act and within its four corners, to formulate the principles for determining non-arbitrability. Exclusion from arbitrability is predominantly a matter of case law. Propounding a fourfold test, held, that the subject-matter of a dispute in an arbitration agreement is not arbitrable when: (1) the cause of action and subject-matter of the dispute relates to actions in rem, that do not pertain to subordinate rights in personam that arise from rights in rem; (2) the cause of action and subject-matter of the dispute affects third-party rights, have erga omnes effect i.e. where rights or obligations are owed towards all, require centralised adjudication, and mutual adjudication would not be appropriate and enforceable; (3) the cause of action and subject-matter of the dispute relates to inalienable sovereign and public interest functions of the State and hence mutual adjudication would be unenforceable; (4) the subject-matter of the dispute is expressly or by necessary implication non-arbitrable as per mandatory statute(s). The aforesaid fourfold test has to be applied with care and caution. These tests are not watertight compartments: they dovetail and overlap, albeit when applied holistically and pragmatically, will help and assist in determining and ascertaining with great degree of certainty when as per law in India, a dispute or subject-matter is non-arbitrable. Only when the answer is in the affirmative that the subject-matter of the dispute would be non-arbitrable. [Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1]

Expanding Horizons of Criminal Procedure Law: Criminal Procedure law is treated merely as a lawyer’s law that tends to remain grossly marginalised in the law schools and training institutes. In this article the author had suggested ways and means for enhancing the understanding and devising new pedagogies of teaching criminal procedure law in the light of growing trends of transformations in the nature and curricular content of criminal procedure courses, highlighting the core criminal procedure issues in the light of lead readings on the subject and underscore a few notable High Court and the Supreme Court rulings that have the potential of maturing into a model procedure law for the future. [Expanding Horizons of Criminal Procedure Law by Prof. B.B. Pande, (2021) 2 SCC (J-1)]

Cases ReportedSupreme Court Cases

SCC Issue dated February 7th, 2021 (Vol. 1 Part 5)

Read the Prashant Bhushan Contempt judgment methodically analysed by our Editors, where the Supreme Court elaborately discussed the caution, care, ambit and scope of criminal contempt jurisdiction. The Court also ruled on the maintainability of criminal contempt proceedings initiated suo motu by the Supreme Court under Article 129 of the Constitution, without consent of the Attorney General for India [(2021) 1 SCC 745]

Short notes: 8

Advocates who appeared in this case: Dushyant Dave and Sajan Poovayya, Senior Advocates.

Contempt of Court — Criminal Contempt — Exercise of contempt jurisdiction — Caution, care, ambit and scope: Contempt jurisdiction is a special jurisdiction, which has to be exercised sparingly and with caution. There must be balancing of contempt jurisdiction, with right to offer healthy and constructive criticism, which is fair in spirit must be left unimpaired in the interest of the institution of the judiciary itself. Principles explained regarding caution, care, ambit and scope of contempt jurisdiction. [Prashant Bhushan, In re (Contempt Matter), (2021) 1 SCC 745]

Criminal Law — Criminal Procedure Code, 1973 — S. 439 — Interim Bail: In this case, there were allegations of abetment of suicide against the appellant-accused. Conditional interim bail was granted and it was held that the High Court was in error in rejecting applications for grant of interim bail in this case. Direction was given to appellants to cooperate in investigation and that they shall not make any attempt to interfere with ongoing investigation or with witnesses. [Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 1 SCC 802]

Criminal Procedure Code, 1973 — S. 320 — Amicable settlement/compromise between parties — Relevance of, to reduce quantum of sentence of convicts even in serious non-compoundable offences: Unequivocal language of S. 320(9) explicitly prohibits any compounding except as permitted under S. 320. Notwithstanding thereto, fact of amicable settlement/compromise between parties can be a relevant factor for purpose of reduction in quantum of sentence of convicts even in serious non-compoundable offences. [Murali v. State, (2021) 1 SCC 726]

Criminal Procedure Code, 1973 — S. 438: Anticipatory bail in triple talaq case: Anticipatory bail can be granted to a person apprehending arrest under the Muslim Women Act, 2019 subject to conditions that: competent court must hear married Muslim woman upon whom the triple talaq is pronounced, and all the requirements specified in S. 7(c) of the 2019 Act are satisfied. S. 438 CrPC is not superseded by S. 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019. Scope and manner of operation of non obstante clause under S. 7 of the 2019 Act, explained. [Rahna Jalal v. State of Kerala, (2021) 1 SCC 733]

Government Contracts and Tenders — Formation of Government Contract — Blacklisting/Debarment of contractor: Form and content of show-cause notice is important. There is mandatory requirement to mention that action of blacklisting is proposed; or it should be possible to draw clear inference to this effect from notice. [Vetindia Pharmaceuticals Ltd. v. State of U.P., (2021) 1 SCC 804]

Penal Code, 1860 — Ss. 302 or 304 Pt. II and 376 — Liability of accused — Absence of intention of killing — Effect of: In this case, offence was committed by a young person against the victim, a young girl of 16 yrs. While committing sexual assault on the victim and during the course of intercourse, accused with all his strength put both of his hands on neck of the victim, who was suffering from motions and vomiting, and by such act she suffered suffocation and died. Considering manner of occurrence, the accused held to have no intention for causing the death of the deceased after intercourse on her. Resultantly, considering factual and legal position, the High Court while maintaining conviction under S. 376 held to have rightly converted conviction under S. 302 into one under S. 304 Pt. II and, thus, sentencing accused to ten years’ rigorous imprisonment. [State of A.P. v. T. Prasanna Kumar, (2021) 1 SCC 720]

Penal Code, 1860 — Ss. 302, 363, 366 and 376(2)(f) — Death sentence: This case of child rape and murder was based on circumstantial evidence and the appellant became the victim of his own past. Considering these factors, death sentence converted to sentence of total 25 yrs of imprisonment. [Dileep Bankar v. State of M.P., (2021) 1 SCC 718]

Wildlife (Protection) Act, 1972 — Schs. I to IV and Ss. 39(1)(a), 49-A, 51, 2 and 9 — Offence of capture or possession of wildlife species listed in Schs. I to IV — When made out: Capture or possession of species belonging to genus to which species specified in Schedules to Wildlife Act belongs or a related or infra species, but not being the very species specified in the Schedules to the Wildlife Act is not enough to constitute offence under the Wildlife Act. [Titty v. Range Forest Officer, (2021) 1 SCC 812]

Cases ReportedSupreme Court Cases

SCC Issue dated January 28th, 2021 (Vol. 1 Part 4)

Read the significant judgment of the Supreme Court expertly analysed by our Editors, where Court ruled on the arbitrability of disputes relating to lease/tenancy agreements or deeds which are governed by the Transfer of Property Act, 1882. [(2021) 1 SCC 529]

Andhra Pradesh Reorganisation Act, 2014 (6 of 2014) — Ss. 82, 2, 3 and 4 — Allocation of employees of power sector undertakings in States of Telangana and A.P. on bifurcation of erstwhile State of A.P.: In this case, there was appointment of One-Man Committee by Supreme Court vide order dt. 28-11-2018, consisting of former Judge of Supreme Court for distributing personnel between power utilities of the two States, granting liberty to parties to approach Court, in case any further direction or clarification was required. While determining the scope of such liberty, Supreme Court while appointing One-Man Committee had directed that decision of the Committee would be final and binding on all parties including power utility companies of two States. Liberty was granted to parties to seek further direction or clarification was with object to complete process of distributing personnel between two States with no right to file appeal thereagainst. Thus, decision of One-Man Committee must be given due weight and cannot be lightly interfered with. Consequently, scope of MAs challenging One-Man Committee’s findings on various grounds, held, is very limited and power utility companies cannot be allowed to seek re-examination of issues raised before One-Man Committee. [Telangana Power Generation Corpn. Ltd. v. A.P. Power Generation Corpn. Ltd.,(2021) 1 SCC 489] 

Arbitration and Conciliation Act, 1996 — Ss. 11 and 8 — Arbitrability of dispute relating to lease/tenancy agreements/deeds and eviction thereunder: Though Ss. 114 and 114-A TPA provide certain protection to the lessee/tenant before being ejected from the leased property, the same cannot be construed as a statutory protection nor as a hard and fast rule in all cases to waive the forfeiture Insofar as eviction or tenancy relating to matters governed by special statutes where the tenant enjoys statutory protection against eviction whereunder the court/forum is specified and conferred jurisdiction under the statute, the dispute is non-arbitrable. However, if the special statutes do not apply to the premises/property and the lease/tenancy created thereunder as on the date when the cause of action arises to seek for eviction or such other relief and in such transaction if the parties are governed by an arbitration clause; the dispute between the parties is arbitrable and there shall be no impediment whatsoever to invoke the arbitration clause. [Suresh Shah v. Hipad Technology (India) (P) Ltd., (2021) 1 SCC 529]

Constitution of India — Art. 32: Stay of implementation of legislation pending challenge thereto and appointment of Expert Committee by Court to resolve differences between those challenging the legislation and Government: In this case of protest against Farm Laws, due to failure of negotiation between Government and farmers and no solution in sight, extraordinary order of stay of implementation of the Farm Laws directed and Expert Committee set up by Court to resolve the conflict between the farmers and the Government. [Rakesh Vaishnav v. Union of India, (2021) 1 SCC 590]

National Law School of India Act, 1986 — Ss. 10, 11, 13, 18 and Sch. I Cls. 9, 13, 14 and 15 — Entrance test for admission to NLSIU — Mode and manner in which may be conducted: Recommendation of Academic Council, held, mandatory for making any change in mode and manner of admission test. As new admission notice dt. 3-9-2020 prescribed separate admission test, that is, National Law Aptitude Test (NLAT) for R-1 University instead of Common Law Admission Test (CLAT) and prescribed homebased online test, which was different from earlier prescription of centre based online test, recommendation of Academic Council, was mandatory which was not obtained. Therefore, admission notice dt. 3-9-2020 was illegal, therefore, quashed. Further held, doctrine of necessity did not warrant a separate entrance exam for NLSIU either. Thus, admission to R-1 University, NLSIU directed to be through CLAT. Detailed directions issued on this and incidental issues. [Rakesh Kumar Agarwalla v. National Law School of India University, (2021) 1 SCC 539]

Penal Code, 1860 — S. 300 Fourthly — Scope and Applicability of: Intention to cause death, held, not necessary to attract S. 300 Fourthly. Rather, the applicability of S. 300 Fourthly depends on the knowledge that can be attributed to the accused. Thus, for determining the applicability of S. 300 Fourthly, the guiding principle is that even if there be no intention to cause death, if there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death, S. 300 Fourthly will get attracted and that the offender must be taken to have known that he was running the risk of causing the death or such bodily injury as was likely to cause the death of the victim. [Shatrughna Baban Meshram v. State of Maharashtra, (2021) 1 SCC 596]

Cases ReportedSupreme Court Cases

Read the seminal judgment of Supreme Court on requirements for a premises in question to qualify as “shared household” for purposes of the Domestic Violence Act, expertly analysed by our Editors in over 12 short notes in the SCC Issue dated 21st January, 2021 (Vol. 1 Part 3). Is it the requirement of law that the aggrieved person must own the premises jointly or singly or by tenanting it jointly or singly? Can the premises belonging to any relative of husband come under shared household?

Arbitration and Conciliation Act, 1996 — S. 34 and Pt. II (Ss. 44 to 48): Principles summarized regarding when challenge to a foreign award under S. 34 in respect of arbitration agreements/awards to which ruling in Balco, (2012) 9 SCC 552, does not apply, and instead principle laid down in Bhatia International, (2002) 4 SCC 105, applies, is maintainable. Based on these principles, held, such challenge is not maintainable where the juridical seat of arbitration is outside India and arbitration is conducted in accordance with the Rules of ICC (i.e. a supranational body of rules). [Noy Vallesina Engg. SpA v. Jindal Drugs Ltd., (2021) 1 SCC 382]

Protection of Women from Domestic Violence Act, 2005 — Ss. 2(s), 17 and 19 — Shared household: Requirements for premises in question to qualify as “shared household” for purposes of the DV Act, 2005, explained in detail. For the premises in question to fall within definition of “shared household” under the DV Act, 2005, firstly, it is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly. Secondly, the household may belong to a joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household. Thirdly, the shared household may either be owned or tenanted by the respondent singly or jointly. Shared household may even be premises belonging to any relative of husband with whom woman lives in domestic relationship but living must have some permanency. Mere fleeting or casual living at different places shall not make a shared household. Intention of parties and nature of living including nature of household are relevant considerations for ascertaining whether parties treated premises as shared household. [Satish Chander Ahuja v. Sneha Ahuja, (2021) 1 SCC 414]

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Cases Reported | Supreme Court Cases

Cases ReportedSupreme Court Cases

SCC Issue dated January 14, 2021 (Vol. 1 Part 2)

Read the Supreme Court Judgment expertly analysed by our Editors directing States and UTs to install CCTV Cameras in all Police Station. How the installation of CCTV Cameras will curb Custodial Violence? Detailed directions laid down.[Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184]

Counsels heard:

Amicus Curiae Siddhartha Dave

Attorney General for India K.K. Venugopal,

Addl. Solicitor General of India Madhvi Divan,

Advocate Nitya Ramakrishnan for the intervenor

Read the following analytical articles:

  • The Legality of Voice Exemplars: An Opportunity Missed: Ritesh Sinha V. State of U.P.:(2021) 1 SCC J-73
  • Reflections on Existence-Unstamped Agreements After Garware Wall Ropes:(2021) 1 SCC J-81

Admissibility and enforceability of an unstamped document: In this article interpretative opinion in respect of the Supreme Court’s judgment in Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd., (2019) 9 SCC 209, regarding admissibility and enforceability of an unstamped document, has been discussed in the light of the relevant provisions of the Indian Stamp Act, 1899, Contract Act, Arbitration Act, Court fees Act, 1870, etc. Reflections on Existence—Unstamped Agreements after Garware Wall Ropes by Akash Rebello, (2021) 1 SCC (J-81)]

Constitution of India — Art. 129: In this case, legal proceedings for extradition of contemnor to India, still pending in United Kingdom. As legal proceedings which attract strict confidentiality as a matter of United Kingdom law currently ongoing in United Kingdom, contemnor not able to provide any further information about nature of proceedings or relief sought. Time granted to Union of India for placing status report on record and discharge application of contemnor, rejected. [SBI v. Kingfisher Airlines Ltd., (2021) 1 SCC 223]

Constitution of India — Art. 21 — Installation of CCTV cameras in police stations — Credible recording of evidence and safeguarding human rights inside police stations: In this case regarding implementation of action plan prepared by Committee of Union of India, Ministry of Home Affairs (MHA) and as directed by Supreme Court in Shafhi Mohammad, (2018) 5 SCC 311, States and Union Territories directed to file compliance affidavit disclosing exact position of CCTV cameras qua each police station. Constitution of Oversight Committees in accordance with order in Shafhi Mohd. case to be done at State and district levels. Duty and composition of State Level Oversight Committee (SLOC) and District Level Oversight Committee (DLOC) defined. Duty and responsibility for working, maintenance and recording of CCTVs shall be that of SHO of police station concerned. Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to State Human Rights Commission, which is then to utilise its powers, more particularly under Ss. 17 and 18 of the Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must be set up in each district of every State/Union Territory under S. 30 of the Human Rights Act, 1993. Commission/Court can then immediately summon CCTV camera footage in relation to incident for its safe keeping, which may then be made available to an investigation agency in order to further process complaint made to it. Union of India also directed to file affidavit in which it will update Supreme Court on constitution and workings of Central Oversight Body (COB). Union of India further directed to install CCTV cameras and recording equipment in offices of agencies where such interrogation and holding of accused takes place in the same manner as it would in a police station. COB shall perform same function as SLOC for offices of investigative/enforcement agencies mentioned above both in Delhi and outside Delhi wherever they be located. [Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184]

Disaster Management Act, 2005 — Ss. 6 and 10(2)(1) — COVID-19 Pandemic — Relief to borrowers in specified loan accounts: Circular dt. 23-10-2020/Scheme announced by the Government of India granting reliefs to borrowers, including relief of waiver of “interest on interest” i.e. grant of ex gratia payment of difference between compound interest and simple interest for six months to borrowers in specified loan accounts (1-3-2020 to 31-8-2020), directed to be implemented in letter and spirit. [Gajendra Sharma v. Union of India, (2021) 1 SCC 210]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — Ss. 4, 1(3), 2(e) & (f) r/w Ss. 2(g), 4, 7, 8, 10, 11 and 15 of the Private Security Agencies (Regulation) Act, 2005 — GSR No. 805 dt. 17-5-1971 making the 1952 Act applicable to establishments rendering expert services: In this case, in terms of provisions of 2005 Act, appellant is the employer paying wages to security guards. Merely because client pays money under contract to appellant, who in turn pays wages to security guards from such contractual amount do not make client employer of security guards. Further held, fact that appellant never made statutory registers under the 2005 Act available to authorities under the EPF Act shows that he was actually withholding relevant papers, which coupled with letter dt. 3-4-2001 written by appellant to Insurance Company seeking Group Janta Personnel Accident Insurance Policy of rupees one lakh each in respect of 79 security personnel, balance sheets seized for Financial Years 2003-2004, 2004-2005, 2005-2006, 2006-2007 showing payment of wages running into lakhs, only leads to irresistible conclusion that appellant had more than 20 employees on its rolls. Thus, appellant was engaged in specialised and expert services of providing trained and efficient security guards to its clients on payment basis and liable under EPF Act. Contention that appellant merely facilitated providing chowkidars, is rejected. [Panther Security Service (P) Ltd. v. EPFO, (2021) 1 SCC 193]

Insolvency and Bankruptcy Code, 2016 — Ss. 16 and 22 — Resolution professional (RP) — Who may be appointed as: Based merely upon the fact that the person who remained in service of one of the financial creditors and is getting pension, a person cannot be disentitled from being appointed as RP. [SBI v. Metenere Ltd., (2021) 1 SCC 191]

Motor Vehicles Act, 1988 — S. 166 — Approach to be adopted by Tribunal and Court: In motor accident claims, standard of proof is one of preponderance of probabilities, rather than beyond reasonable doubt. Approach and role of courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyse material placed on record by parties to ascertain whether claimant’s version is more likely than not true. [Anita Sharma v. New India Assurance Co. Ltd., (2021) 1 SCC 171]

Securities and Exchange Board of India Act, 1992 — S. 19 r/w Ss. 11(1), 11(4)(d), 11(4-A), 11(5), 11-B and Regn. 10 of the SEBI (Prohibition of Insider Trading) Regulations, 2015: Passing of ex parte interim order by Whole-time Member of SEBI, invalid, when there was no urgency to pass such order. [SEBI v. Udayant Malhoutra, (2021) 1 SCC 219]

Service Law — Promotion  — Time-bound promotion scale/increment/scheme — Time-bound promotional scale — Entitlement — Parity — Claim to: In this case, appellant promotee diploma-holders were claiming time-bound promotional scales while working as AEs on a par with direct recruits K & R who were BE (Civil). In terms of First Circular dt. 1-1-1986 an employee on completion of 9 yrs of regular service was entitled to first time-bound promotion while second time-bound promotion was available on completion of 16 yrs; further, where normal promotion was granted before completion of 9 yrs from date of direct recruitment, he was not entitled to first time-bound promotion and was eligible for second time-bound promotion after completion of 16 yrs counted from date of recruitment provided he did not earn second normal promotion before completion of 16 yrs. In terms of Second Circular dt. 24-5-1990, AEs were granted first time-bound promotion on completion of 9 yrs of regular service and second time-bound promotion on completion of 16 yrs of service. The Supreme Court held that the promotee employees are entitled to time-bound promotional scale in terms of First Circular only and cannot claim parity with direct recruits K & R. Further held, benefit granted to some employees by virtue of High Court orders and dismissal of SLPs filed thereagainst would not create binding precedent which runs counter to subsequent Supreme Court judgment rendered in Krishan Kumar Vij, (2010) 8 SCC 701 which relied on Kunhayammed, (2000) 6 SCC 359. Besides, appellants being diploma-holders were promoted under Regn. 7(a)(ii) r/w Regn. 10.4 of the Regulations and had opportunity to compete for direct recruitment after 12 yrs of service which they never availed or remained unsuccessful. Appellants would have been entitled to claim parity with K & R only if they were qualified and promoted against posts reserved for employees by direct recruitment. Furthermore, claim of appellants of discrimination and arbitrariness on basis of time-bound promotion granted to K & R, held, unsustainable since K & R were direct recruits while appellants were promoted as per their seniority in cadre of JE. Appellants were held to be covered by First Circular and not Second Circular which was applicable to direct recruits. No interference with impugned judgment holding that appellants were not entitled to time-bound promotional scale on grounds of parity with other cases called for [Inderjit Singh Sodhi v. Punjab SEB, (2021) 1 SCC 198]

The Legality Of Voice Exemplars: While considering the question of legality of orders passed by criminal courts directing the accused to furnish voice samples for the purposes of investigation, this article presents an analysis of the order of a three- Judge Bench of the Supreme Court in Ritesh Sinha v. State of U.P., (2019) 8 SCC 1. The Legality of Voice Exemplars: An Opportunity Missed: Ritesh Sinha v. State of U.P. by Justice P.N. Prakash, Sanjay S. Jain and Sharath Chandran, (2021) 1 SCC (J-73)]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Shebait  — Sree Padmanabhaswamy Temple, Thiruvananthapuram — Ruler of Travancore: For centuries drawing back from founder of Travancore, till ruler of Travancore who had signed Covenant in May 1949 with the Government of India, shebaitship in respect of the Temple and its properties devolved on one ruler to succeeding ruler of the royal family in an unbroken line of succession in accordance with applicable law of custom and usage and as such ruler of Travancore was having all rights and interest attached to shebait. Successive rulers held office of shebait not as ruling Head of State but in personal capacity as manager and in-charge of the Temple and properties. Even on entering into the Covenant, Art. VIII thereof recognised pre-existing status of shebaitship held by successive line of rulers of Travancore and ruler of covenanting State of Travancore succeeded as shebait and administrator of the Temple, its properties as well as Pandaravaga properties. Position further remained unchanged before as well as after Constitution (Twenty-sixth Amendment) Act, 1971 and Travancore-Cochin Hindu Religious Institutions Act, 1950. After death of ruler of Travancore who had signed the Covenant, shebaitship and administration the Temple and its properties and Pandaravaga properties would continue to devolve on his successor following same custom and usage. Shebaitship did not lapse in favour of State by principle of escheat. [Marthanda Varma v. State of Kerala, (2021) 1 SCC 225]

Also Read:

2021 SCC Vol. 1 Part 1

Cases ReportedSupreme Court Cases

SCC Issue dated January 7, 2021 (Vol. 1 Part 1)

Read the Hate Speech Judgment expertly analysed by our Editors in over 27 short notes. Whether the speech is merely a controversial one or is hate speech. In what circumstances can State action restrict it. (Amish Devgan v. Union of India, (2021) 1 SCC 1)

Number of Short Notes: 29

Counsels who appeared in the matter:

Petitioner’s Advocate: Vivek Jain      

Respondent’s Advocate: Jaikriti S. Jadeja 

Read the following analytical articles:

  • Applicability of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985:(2021) 1 SCC J-1
  • Truth Behind Truth Machines: A Psycho-Legal Enigma:(2021) 1 SCC J-14
  • Rationalising “Complete Justice” Under Article 142:(2021) 1 SCC J-30
  • Seat in Indian Arbitration Law – Conundrum, Concomitants and Significance:(2021) 1 SCC J-51

Applicability of S. 50 of NDPS Act: One of the most important provisions under the NDPS Act is the statutory right granted to a person suspected of possessing any narcotic drug or psychotropic substance to be searched before a Gazetted Officer or Magistrate under S. 50 of the Act. In a stringent statute, it is a vital protection to an accused. Despite a plethora of judgments, there is still lack of clarity on the scope and applicability of this section in cases of “composite search”, i.e. when along with the bag/vehicle/receptacle of the accused, his body is also searched. While some judgments hold that S. 50 would apply only to searches where recovery is made from the body of the accused (and not when recovery is made from the bag/vehicle/receptacle belonging to the accused), others1 have held that even if the recovery is made from the bag/vehicle/receptacle of the accused, if his body is searched, S. 50 will apply. This article examines and analyses this conflict of views. Applicability of Section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 by Sidharth Luthra and Kunal Mimani, (2021) 1 SCC (J-1)]

Constitution of India — Preamble: Hate speech or controversial speech: Fraternity, diversity and pluralism assuring dignity of the individual have fundamental relationship with unity and integrity of the Nation. Speech or expression causing or likely to cause disturbance of or threats to public order, or, divisiveness and alienation amongst different groups of people, or, demeaning dignity of targeted groups, held, is against Preambular precepts, and violates dignity, liberty and freedom of others, particularly of the targeted groups, and poses threat to fraternity, and unity and integrity of the Nation, and must be dealt with as per law. [Amish Devgan v. Union of India, (2021) 1 SCC 1]

Disaster Management Act, 2005 — Ss. 10(2) and 36: In this case, there was spraying of all kinds of disinfectants on human beings, without approval of relevant Ministry, being done supposedly for protecting human beings from COVID-19, not recommended by respondent State. However, no step was taken by respondent State either to prevent or regulate spraying of disinfectant on human body. Obligations of State to ensure preservation of right to life and health in wake of COVID-19 Pandemic in view of the 2005 Act, explained and necessary directions issued. [Gurusimran Singh Narula v. Union of India, (2021) 1 SCC 152]

Legality and reliability of deception detection techniques (DDTs): Revealing the truth behind commission of a crime is an onerous task during investigation proceedings. In various incidents of crime especially in old cases, identifying a criminal and proving guilt beyond reasonable doubt is the greatest challenge. During twentieth century, Polygraph, Narco-analysis and other technologies have emerged as the “Truth machines” to help an investigator to “extract” reality from the subject, especially when conventional methods of investigation and other forensic inputs are rendered ineffective. Deception detectors squarely entail surveillance of psycho-physiological response of the brain while retorting to a query or in a simulated situation. However, these deception detection techniques (DDTs) have globally faced substantial criticism during legal scrutiny across jurisdictions. The Narco-test, being bodily intrusive in nature, has been abandoned in advanced countries. This article delves upon various critical aspects concerning legality and reliability of DDTs in global legal landscape. Truth Behind Truth Machines: A Psycho-Legal Enigma by Dr G.K. Goswami and Siddhartha Goswami, (2021) 1 SCC (J-14)]

Mines and Minerals (Development and Regulation) Act, 1957 — Ss. 4 to 8-A and S. 15 — Fresh grant or extension of mining lease — Manner in which permissible: Statutory provision of R. 68 of the U.P. Minor Minerals (Concession) Rules, 1963 is in the nature of a relaxation rule in special cases and has to be read with the Rules which provide the manner in which the exploitation of minerals should take place. Thus, if a fresh grant or extension of a mining lease has to be made under the Mining Rules, it must be in accordance with Ch. II, and the provision for auction of leases in Ch. IV of the 1963 Mining Rules is in furtherance of a transparent procedure. Extension of mining lease cannot be granted by exercise of power under R. 68 of the 1963 Mining Rules. [Dharmendra Kumar Singh v. State of U.P., (2021) 1 SCC 93]

Origin, nature and scope of Article 142 of the Constitution: This article traces the origins of Article 142 of the Constitution of India, the etymology of the phrase “complete justice” and the underlying inspiration it draws from a concept of British Indian vintage-justice, equity and good conscience. Article 142 has been employed by the Supreme Court in myriad situations. The Court has deliberately left its contours undefined, so as to allow for flexibility to deal with future exigencies. This article argues that though the power should indeed remain undefined, when invoked in derogation of statutory provisions or dehors the statutory regime governing a situation, it must necessarily be accompanied by the formulation of a principle or spelling out of a rational justification, which will operate as a precedent. This alone will lead to rationalising its use and negate the uncertainty associated with its exercise in this manner. Rationalising “Complete Justice” Under Article 142 by Ninad Laud,(2021) 1 SCC (J-30)]

Penal Code, 1860 — Ss. 302 and 34 — Related eyewitnesses — Presence on the spot: Same, held, not believable, when the claim of the witnesses regarding taking the deceased to the hospital from the spot, not supported by the FIR, which was lodged by one of the said witnesses and indicated removal of deceased to the hospital by two other persons. [Rajesh v. State of Haryana, (2021) 1 SCC 118]

Seat of arbitration in Indian Arbitration Law: For India, adoption of “seat” theory has to be read in the light of the Indian Arbitration Act, 1996 which under its Part I subsumes both law governing the arbitration agreement and law governing the arbitration proceedings and also stipulates that Part I shall apply if the “place” of arbitration is in India. Issues have also arisen from the obiter dicta in BALCO v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552. The judicial issues now stem from those observations and the application of “seat” to foreign and domestic seated arbitrations. In this Article, the author has discussed the relevance of “seat” and the factors that help in the determination of a “seat”. While doing so, this article has also also discussed the determining position of law on this issue covered by the Supreme Court decisions. Seat in Indian Arbitration Law – Conundrum, Concomitants and Significance by Akaant Kumar Mittal, (2021) 1 SCC (J-51)]

U.P. Minor Minerals (Concession) Rules, 1963 — R. 68 — Relaxation of Rules in extension of period of mining lease by exercise of power under R. 68 — Permissibility: In this case, State Government extended time for utilising idle period in respect of other plot where lessee was mining. High Court set aside order extending time for mining passed in favour of appellant relying on Cl. 11 of agreement according to which no extension could be granted if during period of lease mining work had been suspended due to rains, flood or any other reason. However, there was no reference to R. 68 in order passed by High Court. Order of High Court was set aside. State Government directed to give effect to its order granting extension of period of lease. [J.P. Yadav v. Kanhaiya Singh, (2021) 1 SCC 116]

Cases ReportedSupreme Court Cases

Administrative Law — Natural Justice — Audi Alteram Partem — Right to Hearing — Cross-examination — Right to — When available: As there was denial of opportunity to appellant to cross-examine witnesses relied upon by assessing officer, matter remanded to first appellate authority to determine the matter afresh in accordance with law by giving fair opportunity to both sides to present their cases. [ICDS Ltd. v. CIT, (2020) 10 SCC 529]

Constitution of India — Art. 32 — Suo motu writ petition: In this case, the issue was revealed in newspaper reports and online news portals relating to an LLM student, A at S.S. Law College from Shahjahanpur, U.P., having gone missing from 24-8-2019. A allegedly levelled certain allegations against persons running the institutions in said Law College. She was located in Rajasthan and as directed, produced before the Court on 30-8-2019. Court spoke to her in camera and after hearing her statement and their grievances against the institution and also the management, petition disposed of with requisite directions including constitution of SIT headed by the IGP to enquire into the matter, and monitoring of the investigations by the High Court. [Missing LLM Student at Swami Shukdevanand Law College, In re, (2020) 10 SCC 515]

Constitution of India — Arts. 19(1)(a), 19(1)(b), 19(2) and 19(3) — Right to protest against Government action, whether legislative or executive action — Scope of: Citizens have right under Arts. 19(1)(a) & (b) to assemble peacefully and protest against action or inaction of State, including a law which has been challenged before the Court but this right needs to be balanced with other contrasting fundamental rights and is subject to reasonable restrictions as indicated in Arts. 19(2) and (3). Expression of dissension or protest must be at a place designated by administration. Holding meeting by blocking public place or road in protest against particular legislation which had also been challenged in Court, for indefinite period without permission of authorities, causing serious inconvenience to commuters or fuelling highly polarised movement elsewhere by using digital infrastructure and social media channels, not democratic way of expressing protest. Administration must take action to clear encroachment or obstruction created by such protestors. [Amit Sahni (Shaheen Bagh, In re) v. State, (2020) 10 SCC 439]

Constitution of India — Sch. VII List III Entries 17-A and 17-B, Arts. 21, 47, 48-A and 51-A(g) — T.N. Government Noti. GO(Ms) No. 125, dt. 31-8-2010 notifying “elephant corridor” and in view thereof direction to resort owners and other private landowners to vacate and hand over vacant possession of the lands falling within the notified elephant corridor — Validity: State Government is empowered to take measures to protect forests and wildlife falling within its territory in light of Entries 17-A “Forest” and 17-B “Protection of wild animals and birds” in the Concurrent List of the Constitution and the power of the State Government under the Wildlife Act to notify sanctuaries and other protected areas — In regard to private forest land, the State Government is empowered to protect the habitats situated on the land in dispute by notifying an elephant corridor thereupon. Arts. 21, 47, 48-A and 51-A(g) give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. The “precautionary principle” which is a part of the law of the land makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. [Hospitality Assn. of Mudumalai v. In Defence of Environment & Animals, (2020) 10 SCC 589]

Criminal Law — Penal Code, 1860 — S. 34 — Common intention: Foundation for conviction on basis of common intention, how inferred, discussed. Principles summarised regarding vicarious/constructive liability. [Subed Ali v. State of Assam, (2020) 10 SCC 517]

Criminal Law — Penal Code, 1860 — Ss. 304 Pt. II and 324 [S. 300 Exception 4]: In this case of culpable homicide not amounting to murder along with voluntarily causing hurt by dangerous weapon, High Court modified conviction of appellant from S. 302 to that under S. 304 Pt. II and reduced sentence of life imprisonment to 5 yrs’ RI along with fine while confirming conviction under S. 324 and sentence of 2 yrs’ RI under. Both sentences were ordered to run concurrently. There was free fight and appellant also sustained injuries and had even attempted to make complaint, was taken into account by High Court. Hence, modification of conviction and sentence imposed on appellant by High Court, held proper. [Ilangovan v. State of T.N., (2020) 10 SCC 533]

Criminal Procedure Code, 1973 — S. 164 r/w Ss. 173, 190, 204, 207 and 208 — Copy of statement recorded under S. 164 — Right of accused to receive: Right to receive a copy of such statement will arise only after cognizance is taken, at the stage contemplated by Ss. 207 and 208 and not before. Thus, the filing of the charge-sheet by itself, would not entitle an accused to copies of any of the relevant documents including statement under S. 164 CrPC. [A v. State of U.P., (2020) 10 SCC 505]

Criminal Procedure Code, 1973 — S. 389: In this case prayer for suspension of sentence/grant of bail, during pendency of appeal, by co-conspirator to kidnapping was rejected by High Court, taking overall view of matter, bail granted. [Mohan v. State of M.P., (2020) 10 SCC 531]

Criminal Procedure Code, 1973 — S. 439 — Bail: Application for Bail dismissed by High Court, without hearing it on merits, not proper. [G. Selvakumar v. State of T.N., (2020) 10 SCC 494]

Excise — Valuation — Transaction value : In this case goods were sold to distributors as physician samples charged at lesser price by assessee. Trade packs for sale to ultimate consumers sold to distributors were charged at higher price by assessee. While determining that for assessment of value in regard to sale of physician samples to distributors, whether S. 4(1)(a) or S. 4(1)(b), was applicable, the Supreme Court held that the transaction in question was between assessee and distributors. Price was charged by assessee from distributors therefore. What ultimately distributors did with these goods is extraneous and could not be relevant consideration to determine valuation of excisable goods in transaction between assessee and its distributors. As assessee charged a price from distributors, it is S. 4(1)(a) that would apply — No allegation in the show-cause notice that the price at which the goods were sold by the assessee to the distributors was not sole consideration. Thus show-cause notice raising demand in terms of S. 4(1)(b) is clearly founded on the wrong reason, and cannot be sustained. Thus, 1975 Rules would also not apply for valuation. [CCE v. Sun Pharmaceuticals Industries Ltd.,(2020) 10 SCC 583]

Factories Act, 1948 — Ss. 5, 51, 54, 55, 56 and 59: In this case, Notifications dt. 17-4-2020 and 20-7-2020 was issued under S. 5 exempting registered factories from provisions relating to humane working conditions and adequate compensation for overtime, etc. in wake of outbreak of COVID-19 and consequent nationwide lockdown, on ground of financial stringency faced by industrial employers. While determining the validity of the Notification, the Supreme Court held that though respondent State aimed to ameliorate financial exigencies caused due to pandemic and subsequent lockdown, but financial losses cannot be offset on weary shoulders of labouring worker, who provides backbone of economy. S. 5 could not have been invoked to issue blanket notification that exempted all factories from complying with humane working conditions and adequate compensation for overtime as a response to pandemic that did not result in “internal disturbance” of nature that posed “grave emergency” whereby security of India was threatened so as to constitute “public emergency” within meaning of S. 5. Hence, impugned notifications were quashed. Further, in order to do complete justice, in exercise of powers under Art. 142 of the Constitution, it was directed that all eligible workers who had worked since issuance of notifications would be entitled to overtime wages. [Gujarat Mazdoor Sabha v. State of Gujarat, (2020) 10 SCC 459]

Insolvency and Bankruptcy Code, 2016 — Ss. 238-A and 7: Application under S. 7 is not maintainable, when debt is barred by limitation. Vesting of onus to prima facie show the existence of a legally recoverable debt i.e. that the debt is not barred by limitation is on applicant. [Radha Exports (India) (P) Ltd. v. K.P. Jayaram, (2020) 10 SCC 538]

Juvenile Justice (Care and Protection of Children) Act, 2000 — Ss. 7-A, 20 and 64 (as amended by Amendment Act 33 of 2006) — Juvenility — Determination of: Juvenile is not entitled to benefit of being a juvenile on the date of the offence under the 1986 Act and who had turned an adult when the 2000 Act was enforced. If juvenile’s age was less than 18 yrs on the date of commission of offence, he is entitled to the benefit of 2000 Act, regardless of whether he had turned an adult before or after commencement of the 2000 Act. Furthermore, not only can benefit of S. 2000 Act be sought at any Stage in respect of pending proceedings, but after insertion of S. 7-A, claim of juvenility may be raised before “any court” “at any stage” i.e. even after the final disposal of the case. [Satya Deo v. State of U.P., (2020) 10 SCC 555]

Protection of Children from Sexual Offences Act, 2012 — S. 7 r/w S. 8 — Conviction on sole testimony of victim — Permissibility of: Where testimony of victim is found reliable and trustworthy, reiterated, conviction on basis of her sole testimony is permissible. [Ganesan v. State, (2020) 10 SCC 573]

Service Law — Appointment — Compassionate Appointment — Entitlement to: Preconditions and criteria specified in applicable policy/rules must be strictly satisfied therefore. [State of M.P. v. Amit Shrivas, (2020) 10 SCC 496]

Service Law — Judiciary — Recruitment process — Recruitment of judicial officers in State of W.B. for recruitment year 2020: In this case, schedule for filling up vacancies was fixed by Supreme Court in Malik Mazhar Sultan (3), (2008) 17 SCC 703 which was to commence with notification of vacancies by 31st March every year and culminate with issuance of appointment letters by 30th September. As notification of vacancies for current year 2020 was not done because of outbreak of pandemic and announcement of lockdown by 24-3-2020, hence, schedule revised. [Malik Mazhar Sultan v. U.P. Public Service Commission, (2020) 10 SCC 524]

Service Law — Recruitment Process — Panel/Select list/Reserve list/Waiting list/Merit list/Rank list — Erroneous answer-key — Recruitment in terms of revised list: In this case, for recruitment to post of Constable (Executive)-Male, names of respondents U and S (OBC candidates) appearred in initial result declared on 17-7- 2015 but not in revised result dt. 22-2-2016 which was occasioned due to errors in answer-key. The Supreme Court noted that mere inclusion of candidate in selection list does not confer vested right of appointment upon him. Besides, process of revising results was carried out before completion of recruitment process for candidates selected pursuant to result dt. 17-7-2015. High Court erred in issuing mandamus to appellants to appoint respondents despite failing to obtain cut-off marks for OBC category in revised result. Further, the fact that there were only two candidates before Supreme Court, would not entitle them to direction contrary to law since they had no vested right to appointment and there were 228 candidates ranked above Respondent U and 265 candidates ranked above Respondent S. Moreover, fact that respondent U had tendered his resignation on 16-8-2015 which was accepted on 25-8-2015 inconsequential since he tendered his resignation without justification before completion of recruitment process and offer of appointment made to him. Besides, it was open to him to seek reenlistment in his erstwhile organisation at material time but he chose not to do so. Failure by authorities to notice initially norm of allotting bonus mark based on height and prepare correct answer-key resulting in litigation across country before tribunals/High Courts and ultimately before Supreme Court, strongly deprecated. [State v. Umesh Kumar, (2020) 10 SCC 448]