Know thy Judge

“There is no rule that in every criminal case, the testimony of an injured eye-witness needs corroboration from the so-called independent witnesses. When the statement of injured eye-witness is found trustworthy and reliable, the conviction on that basis could always be recorded, of course, having regard to all the facts and surrounding factors.”

– Justice Dinesh Maheshwari

Manjit Singh v. State of Punjab, (2019) 8 SCC 529

Justice Dinesh Maheshwari was born on 15th May, 1958 in Udaipur (Rajasthan). He had completed his BSc (Hons.) in physics from Maharaja’s College, Rajasthan University, Jaipur and LL.B. from Jodhpur University. He enrolled as an Advocate with Bar Council of Rajasthan in March, 1981.

♦Did you know? Justice Dinesh Maheshwari’s father, Ramesh Chandra Maheshwari is a prominent advocate in Jodhpur.

As an Advocate

Justice Dinesh Maheshwari practised on original and appellate sides before Rajasthan High Court and its subordinate Courts. He mainly dealt with civil and constitutional matters.

Justice Maheshwari served as counsel for Revenue and Excise Departments of Government of Rajasthan as also several local bodies and corporations. He had also been co-opted member on various disciplinary committees of the Bar Council of Rajasthan.

As a Judge

♦Did you know? Justice Maheshwari hails from lawyers’ lineage and is a first generation judge.

Justice Dinesh Maheshwari took oath as Judge of Rajasthan High Court on 2nd September, 2004. He also served as Chairman of Rajasthan State Judicial Academy and as Administrative Judge of Rajasthan High Court.

Justice Maheshwari was then transferred to Allahabad High Court and took oath on 19th July, 2014. He was appointed as Chief Justice of the High Court of Meghalaya on the 24th February 2016 and then, as Chief Justice of High Court of Karnataka on 12th February 2018.

♦Did you know? The collegium had superseded Justice Maheshwari in October, 2018 when it recommended the elevation of the then Chief Justice of the Tripura High Court, Justice Ajay Rastogi — originally from the Rajasthan High Court — to the Supreme Court.[1]

Justice Maheshwari was elevated as a Judge of the Supreme Court of India on 18th January, 2019.

♦Did you know? While Justice Maheshwari was at serial number 21 of all-India seniority list of judges, Justice Khanna was at 33.

Notable Judgments – Supreme Court

Pappu v. State of U.P., 2022 SCC OnLine SC 176

In a case where a man had brutally raped and murdered a 7-year-old girl, the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and CT Ravikumar, JJ has reversed the concurrent findings of the Courts below and has commuted the death sentence into that of imprisonment for life, with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 years.

“The heinous nature of crime like that of present one, in brutal rape and murder of a seven-year-old girl child, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience. But, at the same time, it is noticeable that the appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family comprising of wife, children and aged father, and has unblemished jail conduct.”

Read More…

B.L. Kashyap & Sons Ltd. v. JMS Steels & Power Corpn., (2022) 3 SCC 294

While clarifying the law on leave to defend, the Division Bench of Vineet Saran and Dinesh Maheshwari*, JJ., held that even if there remains a reasonable doubt about the probability of defence, sterner or higher conditions could be imposed while granting leave to defend but, denying the leave would be ordinarily countenanced only in such cases where the defendant fails to show any genuine triable issue and the Court finds the defence to be frivolous or vexatious.

Read More…

Explained| Grant of Leave to Defend: The best approach | Read More…

Ashish Shelar v. Maharashtra Legislative Assembly, 2022 SCC OnLine SC 105

In a big relief to the 12 BJP MLAs who were suspended by the Maharashtra Legislative Assembly, by resolution dated 05.07.2021, for a period of 1 year due to “indisciplined and unbecoming behaviour resulting in maligning the dignity of the House”, the 3-judge bench of AM Khanwilkar*, Dinesh Maheshwari and CT Ravikumar, JJ has held that the said resolution is unconstitutional, grossly illegal and irrational to the extent of period of suspension beyond the remainder of the concerned (ongoing) Session.

The bench observed,

“Only a graded approach is the essence of a rational and logical approach; and only such action of the Legislature which is necessary for orderly conduct of its scheduled business of the ongoing Session can be regarded as rational approach. Suspension beyond the Session would be bordering on punishing not only the member concerned, but also inevitably impact the legitimate rights of the constituency from where the member had been elected.”

Resultantly, the 12 MLAs are entitled for all consequential benefits of being members of the Legislative Assembly, on and after the expiry of the period of the remainder of the concerned Session in July 2021.

Read More…

State of Haryana v. Daronacharya College of Engineering, Special Leave to Appeal (C) No(s). 31730 of 2016

While holding that the term “school children” will include college and university as well while interpreting government memo exempting passengers tax in respect of Stage Carriage (buses) owned by educational institution and used for the transportation of children to and from such institutions, the Division Bench of Dinesh Maheshwari and Vikram Nath, JJ., remarked,

“It gets perforce reiterated that the broad expression “children”, obviously, refers to the students taking instructions in educational institutions, irrespective of their class or standard or level.”

Read More…

Union of India v. Raj Grow Impex LLP,  2021 SCC OnLine SC 429

In the case relating to confiscation of a large quantity of yellow peas imported from China, the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and Krishna Murai, JJ has held that the goods in question are to be held liable to absolute confiscation but with a relaxation of allowing reexport, on payment of the necessary redemption fine and subject to the importer discharging other statutory obligations.

Noticing that the personal interests of the importers who made improper imports are pitted against the interests of national economy and more particularly, the interests of farmers, the Court said,

“When personal business interests of importers clash with public interest, the former has to, obviously, give way to the latter.”

Read More…

Bajranga v. State of M.P., 2021 SCC OnLine SC 27

While setting aside the impugned order of High Court of judicature at Madhya Pradesh for upholding the taking over of possession and eviction under MP Land Revenue Code, 1959, a 3-judge Bench comprising of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ., held that when there was no surplus land there could be no question of any proceedings for take over of the surplus land under the said Act.

“Right to property is still a constitutional right under Article 300A of the Constitution of India though not a fundamental right. The deprivation of the right can only be in accordance with the procedure established by law.”

Read More…

Indian School, Jodhpur v. State of Rajasthan, 2021 SCC OnLine SC 359

The bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has directed the School Managements of Rajasthan private schools to Give 15% deduction in Annual school fees and ordered that no students are to be debarred for non – payment of fees.

“The school Management supposedly engaged in doing charitable activity of imparting education, is expected to be responsive and alive to that situation and take necessary remedial measures to mitigate the hardship suffered by the students and their parents. It is for the school Management to reschedule payment of school fee in such a way that not even a single student is left out or denied opportunity of pursuing his/her education, so as to effectuate the adage “live and let live”.”

Read more…

Rajiv Suri v. Delhi Development Authority, 2021 SCC OnLine SC 7

A 3-judge bench comprising of A. M. Khanwilkar*, Dinesh Maheshwari and Sanjiv Khanna**, JJ, by a 2:1 verdict, held that there is no infirmity in the grant of “no objection” by the Central Vista Committee (CVC) and “approval” by the Delhi Urban Art Commission (DUAC) and “prior approval” by the Heritage Conservation Committee (HCC) to the Central Vista Project and given a go ahead to the Central Vista Project.

“The project does not involve any conversion into private ownership and has no element whatsoever of permitting commercial use of vital public resources. The proposed project is in line with the standards of public trust.”

Read More…

Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd, 2021 SCC OnLine SC 160

The bench of AM Khanwilkar and Dinesh Maheshwari, JJ., while deciding the application hearing an application by the IRP Anuj Jain who was arrest n connection with an accident on the Expressway for not taking safety measures suggested by the IIT in its safety audit conducted in 2018 to reduce road accidents, said that it was “appalled to see” extreme step taken by Uttar Pradesh Police in the case.

The Court directed the release of the applicant and further directed the Investigating Officer not to take any coercive action against him in connection with the subject F.I.R. until further orders.

The Court also issued a show cause notice to the Investigating Officer, Bijender Singh, Sub-Inspector, as to why appropriate action is not taken against him for taking such drastic action against the applicant.

Read More…

State of Tamil Nadu v. K. Shobhna,  2021 SCC OnLine SC 179

In a petition related to reservation and filling up of backlog vacancies, the 3-judge bench of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ., explaining the applicability of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 and held that the reserved category students scoring on their own merit to be adjusted under general category.

Read More…

Joydeep Majumdar v. Bharti Jaiswal Majumdar, 2021 SCC OnLine SC 146

The 3-judge bench of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy*, JJ held malicious allegation against spouse costing him his job and reputation is not an attempt to preserve the relationship but a definite case of mental cruelty and the husband was entitled to dissolution of his marriage.

“The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party.”

Read More…

Chandra Deepak Kochhar v. ICICI Bank Ltd., 2020 SCC OnLine SC 969

A 3-judge bench comprising of Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy, JJ., refused to interfere with the termination of Chanda Kochhar as the Managing Director and CEO of ICICI Bank.

Read More…

Shoda Devi v. DDU/Ripon Hospital Shimla, 2019 SCC OnLine SC 334

“The award of compensation cannot go restrictive when the victim is coming from a poor and rural background.”

While enhancing compensation in a case of medical negligence, a Division bench comprising of Abhay Manohar Sapre and Dinesh Maheshwari*, JJ., held that award of compensation cannot go restrictive when the victim is from poor and rural background and awarded Rs. 10 Lakh compensation to ‘send message’ to medical practitioners.

“Such granting of reasonability higher amount of compensation in the present case appears necessary to serve dual purposes: one, to provide some succour and support to the appellant against the hardship and disadvantage due to amputation of right arm; and second, to send the message to the professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all the human beings deserve to be treated with equal respect and sensitivity.”

Read More…

Kavita Kanwar v. Pamela Mehta, 2020 SCC OnLine SC 464

While dealing with the issue of proving of wills and when a will may be considered to be invalid and executed under suspicious circumstances, a Division bench comprising of Abhay Manohar Sapre and Dinesh Maheshwari*, JJ., held that,

“thick clouds of suspicious circumstances are hovering over the Will in question which have not been cleared; rather every suspicious circumstance is confounded by another and the curious case of the alleged third page of the Will effectively and completely demolishes the case of the appellant.”

Sujata Kohli v. High Court of Delhi, (2020) 14 SCC 58

“The right to be considered for promotion is a fundamental right of equality of opportunity in the matter of employment.”

While dismissing a petition by Additional District and Sessions Judge Sujata Kohli challenging the constitutional validity of certain rules and resolutions of Delhi high Court on criteria for appointment of a judicial officer to the post of District Judge and Sessions Judge, a Division bench comprising A M Khanwilkar and Dinesh Maheshwari*, JJ., held that grading of an individual officer remains a matter between the officer and the establishment and it cannot be said that the high court has caused any prejudice to the appellant in the matter of ACR gradings.

“Having regard to the circumstances of this case, we are impelled to observe that while raising grievances with regard to the impact and effect of ACR gradings, the appellant appears to have missed out the fundamental factor that for the promotions in question, an individual’s minimum merit, by itself, was not going to be decisive, but the relevant factor was going to be comparative merit of the persons in the zone of consideration.”

Rusoday Securities Ltd. v. National Stock Exchange of India Ltd., 2020 SCC OnLine SC 948

“It is the fundamental principle of an equitable examination that “the one who seeks equity must do equity”.

While deciding the issue, whether NSE can realise withheld securities prior to expulsion or declaration of defaulter, the bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., the Court held that vesting of withheld securities of a defaulting member does not take place in favour of the NSE/NSCCL unless a formal expulsion order is passed and without such legal vesting, the Exchange only sits upon the withheld assets as a custodian.

Read More…

Union of India v. Exide Industries Limited and Another,  2020 SCC OnLine SC 399

A 3-judge bench of A.M. Khanwilkar*, Hemant Gupta, Dinesh Maheshwari, JJ., deciding on the validity of clause (f) to Section 43-B Income Tax Act, 1961, held,

“To hold a provision as violative of the Constitution on account of failure of the legislature to state the Objects and Reasons would amount to an indirect scrutiny of the motives of the legislature behind the enactment. Such a course of action, in our view, is unwarranted. The raison d’être behind this self-imposed restriction is because of the fundamental reason that different organs of the State do not scrutinise each other’s wisdom in the exercise of their duties. In other words, the time-tested principle of checks and balances does not empower the Court to question the motives or wisdom of the legislature, except in circumstances when the same is demonstrated from the enacted law.”

Read More

State of Madhya Pradesh v. Bherulal, 2020 SCC OnLine SC 849

“Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed”

A Division bench of Sanjay Kishan Kaul* and Dinesh Maheshwari, JJ., dismissing the a Special Leave Petition filed by the State of Madhya Pradesh with a delay of 663 days, held

“We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value.”

Read More

L.R. Brothers Indo Flora Ltd v. Commissioner of Central Excise, 2020 SCC OnLine SC 705

A Division bench comprising of AM Khanwilkar* and Dinesh Maheshwari, JJ., while deciding when can a subsequent legislation be applied retrospectively, held that for an application of a subsequent legislation retrospectively, it is necessary to show that the previous legislation had any omission or ambiguity or it was intended to explain an earlier act.

“It is a settled proposition of law that all laws are deemed to apply prospectively unless either expressly specified to apply retrospectively or intended to have been done so by the legislature. The latter would be a case of necessary implication and it cannot be inferred lightly.”

Read More…

Workmen v. Ravuthar Dawood Naseem, 2020 SCC OnLine SC 461

While deciding a contempt petititon, a Division Bbnch comprising constiting of A.M. Khanwilkar* and Dinesh Maheshwari, JJ., held that to establish civil contempt, disobedience of order should be wilful, deliberate & with full knowledge of consequences

Read More…

Anuj Jain v. Axis Bank Ltd., 2020 SCC OnLine SC 237

The Division bench consisting of AM Khanwilkar and Dinesh Maheshwari*, JJ., held that the lending banks of Jaiprakash Associates Limited (JAL) were not the financial creditors and that the transactions in question were to defraud the lenders of the corporate debtor Jaypee Infratech Limited (JIL).

“the transactions in question are hit by Section 43 of the Code and the Adjudicating Authority, having rightly held so, had been justified in issuing necessary directions in terms of Section 44 of the Code.”

The Court directed the return of mortgaged land to Jaypee Infratech Limited

Read More…

Nisha Priya Bhatia v. Union of India, 2020 SCC OnLine SC 394

“A non-hostile working environment is the basic limb of dignified employment.”

While directing the Centre to pay Rs. 1 Lakh compensation for improper handling of sexual harassment allegation by former RAW agent Nisha Priya Bhatia, the bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., upheld the compulsory retirement for Nisha Priya Bhatia on the ground of “exposure” having regard to the nature of work of the Organisation of which confidentiality and secrecy are inalienable elements.

“…the cases of sexual harassment at workplace is not confined to cases of actual commission of acts of harassment, but also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace.”

Read More…

 Gopalkrishnan v. State of Kerala, 2019 SCC OnLine SC 1532

The Division bench of AM Khanwilkar* and Dinesh Maheshwari, JJ., held that the contents of a memory card or a pen drive in relation to a crime amount to a ‘document’ and not a ‘material object’.

The Court also opined that the accused would be entitled to a copy of the same to prepare his defence under Section 207 of the Code of Criminal Procedure, 1973 and if the electronic evidence is regard to the cases involving issues such as of privacy of the complainant/witness or his/her identity, then the trial court, keeping in mind the sensitivity of the contents, could deny a copy but may allow the inspection to the accused and his/her lawyer or expert for presenting effective defence during the trial.

“…the accused must be given a cloned copy thereof to enable him/her to present an effective defence during the trial. However, in cases involving issues such as of privacy of the complainant/witness or his/her identity, the Court may be justified in providing only inspection thereof to the accused and his/her lawyer or expert for presenting effective defence during the trial.”

Read More…

Notable Judgments – High Court

♦Did you know?When Justice Maheshwari was judge of the Rajasthan High Court, he re-initiated an inquiry against P. Krishna Bhat, a district judge, at the Centre’s behest. Justice Bhat’s promotion was stalled in light of allegations of “atrocities and abuse of power” made by a female judicial officer. Though Justice Bhat was cleared of all charges twice, Justice Maheshwari initiated a third inquiry — purportedly on instructions issued in a letter written directly by the Law Ministry.[2]

Dream Merchants v. State of Karnataka, 2018 SCC OnLine Kar 1332

While deciding whether the fashion show organised by the appellant, falls within the expression ‘entertainment’ and there had been ‘payment for admission’ so as to attract the relevant charging provisions of the Act, 1958, the Division bench headed by Chief Justice Dinesh Maheshwari held that ‘fashion show’ falls within the expression ‘entertainment’ and hence liable to attract state tax.

Anusha N. v. Union of India, 2018 SCC OnLine Kar 2358

“Public Interest Litigation cannot be used as a tool to wreck vengeance”

Dismissing the PIL by the petitioner who had filed several criminal charges against her husband, the Division bench of Dinesh Maheshwari, CJ. and S. Sujatha, J., held that the scope of public interest litigation cannot be widened to serve private interest in the pending litigation in order to being reforms in the justice delivery system.

“The fundamental object of public interest litigation is to enforce fundamental rights and genuine infraction of statutory provisions but not to set right the private dispute or to bring the parties to terms.”

Sekhar S. Iyer v. Chief Secretary, Government of Karnataka, 2018 SCC OnLine Kar 3811

While deciding the issue whether the post of deputy chief minister is unconstitutional, a Division bench of Dinesh Maheshwari*, C.J. and Krishna S. Dixit, J., held that the post of deputy chief minister is not unconstitutional and a mere description of any minister in the council of ministers as a deputy chief minister does not confer any power of chief minister to such person.

“…mere description of any Minister in the Council of Ministers as Deputy Chief Minister does not confer the person concerned with any powers of the Chief Minister and does not result in any unconstitutionality.”

The Court also observed that there was no justification for filing the writ petition as a PIL and the petition filed by the petitioner is an example of “entirely frivolous, meaningless, unnecessary and unwarranted PIL petition in this Court and that too, by none other but a person who is engaged in teaching Business Law and is not oblivious of the legal process.”

Tenzing Choden Sherpa v. Union of India, 2017 SCC OnLine Megh 35

“Any decision by any Ministry cannot override the plain provisions of law nor any correspondence or any communication could do so.”

The Division Bench of Dinesh Maheshwari*, C.J., and Ved Prakash Vaish, J., held that all Tibetans born in India after 26 January 1950 and before 1 July 1987, as per the Citizenship Act, 1955 are to be considered as Indians.

The Court opined that the respondents were unjustified in denying the rights to the petitioners as citizens of India and such rights flow directly and unfailingly by the operation of the plain provisions of law i.e. by operation of Section 3 of the Act of 1955.

Read More…

A.P. Ranganatha v. Chief Election Commission, 2018 SCC OnLine Kar 3837

A Division bench comprising of Dinesh Maheshwari*, CJ. and S. Sujatha, J., held that a decision to hold bye-elections in a vacant constituency on account of it being unrepresented for more than a year cannot be held invalid.

“Looking to the purport and purpose of Clause (a) of proviso to Section 151A of the Act of 1951, it is but clear that the period of one year as referred in Clause (a) is not referring to the term of the newly elected member after occurrence of vacancy, but the same refers to the remaining term from the date of occurrence of vacancy and that ought not be less than one year.”

Read More…

SCOPE v Karnataka State Open University, 2018 SCC OnLine Kar 1568

Dinesh Maheshwari, J. while hearing a civil writ petition for appointment of arbitrator opined that termination of agreement does not automatically terminate the arbitration clause contained in such agreement.

“…where the parties stand at conflict and disputes do exist and looking to the terms of the agreement, it is just and proper that an independent arbitrator be appointed to adjudicate upon and decide the disputes between the parties, including their claims, counter claims and objections.”

Read More…

Vijay Mallya v. State Bank of India, 2018 SCC OnLine Kar 1733

Dismissing the writ petition filed by industrialist Vijay Mallya, a Division bench of Dinesh Maheshwari and Krishna N. Dixit, JJ., held that DRAT’s requirement of pre-deposit for maintaining the appeal was legitimate.

“This requirement cannot be construed as a pre-condition for restoring the appeal but has to be understood as the requirement of Section 21 of the Act for maintaining the appeal.”

The Court while explaining the nature and effect of amendment to Section 21 of Recovery of Debts due to Banks and Financial Institutions Act, 1993 observed that Section 21 of the Act of 1993 does not directly deals with the right of appeal but deals with the conditions, subject to which the said right becomes exercisable.

“the right of appeal is a matter of substantive law; this right may be absolute or conditional, as may be provided by law that creates the said right; it is also well settled that the right of appeal although accrues to a party when the litigation originally commences, the same becomes exercisable after an adverse order is made against him.”

Read More…

† Editorial Assistant, EBC Publishing Pvt. Ltd. 

* Judge who has penned the judgment.

** Judge who has penned the dissenting judgment.