Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ has lucidly laid down the principles governing the power of the Courts to direct re-trial, Joint Trial and Separate trial and has held retrial and joint trial can be ordered only in exceptional circumstances.

Principles governing Retrial

  1. The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice;
  2. Mere lapses in the investigation are not sufficient to warrant a direction for retrial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;
  3. A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence;
  4. It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process;
  5. If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and

The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice :

a) The trial court has proceeded with the trial in the absence of jurisdiction;

b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and

c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade.

Ukha Kolhe v. State of Maharashtra, (1964) 1 SCR 926 [Constitution Bench]

“An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. [..]”

Principles governing joint trial and separate trials

State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850

“… a separate trial is the rule and a joint trial is the exception. However, in case the accused persons commit different offences forming a part of the same transaction, a joint trial would be the rule unless it is proved that joint trial would cause difficulty”

  1. Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 – 221 CrPC provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223 CrPC, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied;
  2. While applying the principles enunciated in Sections 218 – 223 CrPC on conducting joint and separate trials, the trial court should apply a two-pronged test, namely, (i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay.
  3. The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of accused or the prosecutrix;
  4. Since the provisions which engraft an exception use the phrase ‘may’ with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice; and
  5. A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be.

[Nasib Singh v. State of Punjab,  2021 SCC OnLine SC 924, decided on 08.10.2021]

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Counsels:

Amicus curiae: Senior Advocate D Bharat Kumar

For appellant: Advocate Vipin Gogia

For State of Punjab: Advocate Uttara Babbar

For other accused: Advocates Nishesh Sharma, Narender Kumar Verma


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: In a bid to curb the worrying trend of parallel proceedings for complaints under Section 138 of the NI Act, the bench of Dr. DY Chandrachud*, Vikram Natha and BV Nagarathna, JJ has held that a complainant cannot pursue two parallel prosecutions for the same underlying transaction.

“Once a settlement agreement has been entered into by the parties, the proceedings in the original complaint cannot be sustained and a fresh cause of action accrues to the complainant under the terms of the settlement deed.”

What led to the decision?

In the case at hand, a set of cheques were dishonoured, leading to filing of the first complaint under Section 138 of the NI Act. The parties thereafter entered into a deed of compromise to settle the matter. While the first complaint was pending, the cheques issued pursuant to the compromise deed were dishonoured leading to the second complaint under Section 138 of the NI Act. Both proceedings were pending simultaneously and hence, the issue before the Supreme Court was to decide whether the complainant can be allowed to pursue both the cases or whether one of them must be quashed and the consequences resulting from such quashing.

Analysis

Ingredients of the offence under Section 138

(1) drawing of the cheque,

(2) presentation of the cheque to the bank,

(3) returning the cheque unpaid by the drawee bank,

(4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount,

 (5) failure of the drawer to make payment within 15 days of the receipt of the notice.

Remedies under Section 138 of the NI Act

The effect of an offence under Section 138 of the NI Act is limited to two private parties involved in a commercial transaction. However, the intent of the legislature in providing a criminal sanction for dishonour of cheques is to ensure the credibility of transactions involving negotiable instruments.

Given that the primary purpose of Section 138 of the NI Act is to ensure compensation to the complainant, the NI Act also allows for parties to enter into a compromise, both during the pendency of the complaint and even after the conviction of the accused.

Worrying trend of parallel proceedings for complaints under Section 138 of the NI Act

“The pendency of court proceedings under Section 138 of the NI Act and the multiplicity of complaints in which a cause of action arising from one transaction is litigated has dampened the ease of doing business in India, impacted business sentiments and hindered investments from investors.”

The Court noticed that the introduction of a criminal remedy has given rise to a worrying trend where cases under Section 138 of the NI Act are disproportionately burdening the criminal justice system

Hence, under the shadow of Section 138 of the NI Act, parties are encouraged to settle the dispute resulting in ultimate closure of the case rather than continuing with a protracted litigation before the court. This is beneficial for the complainant as it results in early recovery of money; alteration of the terms of the contract for higher compensation and avoidance of litigation. Equally, the accused is benefitted as it leads to avoidance of a conviction and sentence or payment of a fine. It also leads to unburdening of the judicial system, which has a huge pendency of complaints filed under Section 138 of the NI Act.

Whether once the settlement has been entered into, the complainant can be allowed to pursue the original complaint under Section 138 of the NI Act?

Holding that a complainant cannot pursue two parallel prosecutions for the same underlying transaction, the Court said that allowing the complainant to pursue parallel proceedings, one resulting from the original complaint and the second emanating from the terms of the settlement would make the settlement and issuance of fresh cheques or any other partial payment made towards the original liability meaningless.

The Court explained that a contrary interpretation, which allows for the complainant to pursue both the original complaint and the consequences arising out of the settlement agreement, would lead to contradictory results.

First, it would allow for the accused to be prosecuted and undergo trial for two different complaints, which in its essence arise out of one underlying legal liability.

Second, the accused would then face criminal liability for not just the violation of the original agreement of the transaction which had resulted in issuance of the first set of cheques, but also the cheques issued pursuant to the compromise deed.

Third, instead of reducing litigation and ensuring faster recovery of money, it would increase the burden of the criminal justice system where judicial time is being spent on adjudicating an offence which is essentially in the nature of a civil wrong affecting private parties.

A complainant enters into a settlement with open eyes and undertakes the risk of the accused failing to honour the cheques issued pursuant to the settlement, based on certain benefits that the settlement agreement postulates. The benefits may include – higher compensation, faster recovery of money, uncertainty of trial and strength of the complaint, among others.

Hence,

“Once parties have voluntarily entered into such an agreement and agree to abide by the consequences of non-compliance of the settlement agreement, they cannot be allowed to reverse the effects of the agreement by pursuing both the original complaint and the subsequent complaint arising from such non-compliance. The settlement agreement subsumes the original complaint.”

The Court, hence, held that non-compliance of the terms of the settlement agreement or dishonour of cheques issued subsequent to it, would then give rise to a fresh cause of action attracting liability under Section 138 of the NI Act and other remedies under civil law and criminal law.

[Gimpex Private Limited v. Manoj Goel, 2021 SCC OnLine SC 925, decided on 08.10.2021]

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Counsels:
For appellant: Senior Advocate V Giri and Advocate Liz Mathew

For respondent: Senior Advocate Jayant Bhushan


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and BV Nagarathna, JJ has held that a Preliminary Enquiry is not mandatory in all cases which involve allegations of corruption.

The Court said that in case the information received by the CBI, through a complaint or a “source information”, discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence.

Holding that the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, Prevention of Corruption Act or even the CBI Manual, the Court said that issuing a direction to that affect will be “tantamount to stepping into the legislative domain.” 

However, it was made clear that holding the aforesaid will not take away from the value of conducting a Preliminary Enquiry in an appropriate case.

“The registration of a Regular Case can have disastrous consequences for the career of an officer, if the allegations ultimately turn out to be false. In a Preliminary Enquiry, the CBI is allowed access to documentary records and speak to persons just as they would in an investigation, which entails that information gathered can be used at the investigation stage as well. Hence, conducting a Preliminary Enquiry would not take away from the ultimate goal of prosecuting accused persons in a timely manner. However, we once again clarify that if the CBI chooses not to hold a Preliminary Enquiry, the accused cannot demand it as a matter of right.”

Important rulings

Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1

If the information received discloses the commission of a cognizable offence at the outset, no Preliminary Enquiry would be required. Further, the scope of a Preliminary Enquiry is not to check the veracity of the information received, but only to scrutinize whether it discloses the commission of a cognizable offence.

Union of India v. State of Maharashtra, (2020) 4 SCC 761

The Court reversed the decision of a two Judge Bench in Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 [Read more] which had, inter alia, held that “a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act 1989 and that the allegations are not frivolous or motivated”.

The three Judge Bench held that such a direction was impermissible since neither the CrPC nor the Atrocities Act mandate a preliminary inquiry.

“In case a cognizable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made (…). The direction would mean that even if a complaint made out a cognizable offence, an FIR would not be registered until the preliminary inquiry is held. In case a preliminary inquiry concludes that allegations are false or motivated, FIR is not to be registered, in such a case how a final report has to be filed in the Court. Direction 79.4 cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure vis-à-vis to the complaints lodged by members of upper caste, for latter no such preliminary investigation is necessary. In that view of the matter it should not be necessary to hold preliminary inquiry for registering an offence under the Atrocities Act, 1989.”

Read more…

Charansingh v. State of Maharashtra,  (2021) 5 SCC 469

An enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged.

However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made.

Read more…

[CBI v. Thommandru Hannah Vijayalakshmi, 2021 SCC OnLine SC 923, 08.10.2021]

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Counsels:

For CBI: Aishwarya Bhati, Additional Solicitor General

For respondents: Senior Advocates Siddharth Luthra and Siddharth Dave


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case Briefs

Supreme Court: The 3-Judge Bench comprising of Dr Dhananjaya Y Chandrachud*, Vikram Nath and BV Nagarathna, JJ., has held that the question whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor is a question of law and existence of alternate remedy would not bar the High Court from entertaining the same. The Bench expressed,

“The issues raised by the appellant were questions of law which required, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor…”

The crux of the case was that the Patna High Court had declined to entertain writ petition challenging the validity of electricity duty and penalty imposed on the electricity supplied to Bihar State Electricity Board (BSEB) on the ground that the dispute between the parties was factual in nature and was suitable for adjudication in terms of the statutory remedy provided in the Bihar Electricity Duty Act 19481.

Factual Developments

The appellant, a sugar mill company was engaged in the business of manufacture and sale of white crystal sugar. The waste of sugarcane (bagasse) was used for the production of electricity for its own consumption by the appellant and the surplus energy was supplied to BSEB.

In pursuance of its power under Section 3(1) of the Act, the State had issued a notification dated 21-10-2002 which stipulated that the rate of duty applicable on the consumption or sale of electricity would be fixed at six per cent of the value of energy consumed or sold for any other purposes other than irrigation which was later amended on 04-03-2005 which provided that the rate of duty to be levied on consumption of electrical energy generated by captive power plants would be six per cent of the  value of energy, i.e. energy tariff as fixed by the BSEB. Noticeably on 14-01-2011 another notification was issued by the State, granting a blanket exemption from payment of electricity duty on electricity generated by captive plants for self-consumption.

In the above backdrop, the appellant had challenged the notifications dated 21-10-2002, which was struck down by the High Court on the ground that there were no guidelines in the statute or the notifications for construing the expression ‘value of energy’. Subsequently, the State amended the Act through the Bihar Finance Act 2012 with retrospective effect from 17-10-2002 for defining the term ‘value of energy’.

Once again, the appellant challenged the amendment in the High Court, however, while the petition was pending the State issued a notice to the appellant for its failure to file returns under Section 6B (1) of the Act, concealment of the sale of electricity of approximately Rs 56 crores and for raising a demand of electricity duty and penalty of about Rs 67 crores.

Grievance raised by the Appellant

On behalf of the appellant, the following submissions had been made to substantiate the claim that no tax can be levied on the supply of electricity by the appellant to BSEB for the following reasons:

  1. Under Section 3 of the Act, tax was levied on the ‘value of energy’ and Section 2(ee) only brought the sale to a consumer within the ambit of the phrase ‘value of energy’;
  2. BSEB was a ‘licensee’ and not a ‘consumer’ in view of the definition of ‘licensee’ provided under Section 2(d) of the Act; and the term ‘value of energy’ used in Section 3 for the levy of tax was not applicable to BSEB because the definition of ‘consumer’ excluded a licensee, Section 2 (b) states:

“‘Consumer’ means any person who is supplied with energy but does not include either a licensee or the distributing licensee…”

  1. BSEB was already paying electricity duty for the electricity sold by it to consumers, including the electricity supplied by the company to the Board. The levy of tax on the electricity supplied by the company would thus amount to double taxation;
  2. Even if it was conceded that the State had power to levy tax on the supply of electricity by the generator to the licensee, the Government had not exercised its power, since under Section 3, a notification must be issued for specifying the rate of charge. The notification issued on 21-10-2002 was only providing the rate of duty on ‘consumption or sale of electricity’.
  3. Since the power exercised by the State under Section 3 of the Act to levy electricity duty on sale of electricity by the appellant to BSEB was a jurisdictional issue, the rule of alternate remedy would not apply;

Analysis

In a similarly placed case, which was initially tagged with the instant petition but was later de-tagged, National Thermal Power Corporation Ltd. (NTPC) was supplying electricity exclusively to the Electricity Boards, which had challenged the same issue before the Court, the High Court had held that electricity duty could not be imposed under Section 3 (1) of the Act on a power generation company supplying electricity to a licensee like the Electricity Board, concluding that it was beyond the legislative competence of the State to impose a tax on the sale of electricity which was not a sale for consumption. Moreover, the High Court observed that in terms of the provisions of the Bihar Electricity Act, a power generation company is liable to pay duty only if it is selling electricity to the consumer, as defined in the legislation.

Noticeably, the High Court by its impugned order had declined to entertain the writ petition on two counts: (i) the appellant had an alternate statutory remedy under Section 9A of the Act; and (ii) the dispute involved questions of fact which are not amenable to the writ jurisdiction of the High Court. The Bench observed that it was not the case of the appellant that the respondents had miscalculated the duty and penalty imposed on it. The appellant contended that the State Government did not have power to levy tax on its sale of electricity to BSEB. Thus, the plea stroke at the exercise of jurisdiction by the Government; accordingly, the Bench held,

“The High Court can exercise its writ jurisdiction if the order of the authority is challenged for want of authority and jurisdiction, which is a pure question of law.”

Relying on the decision in Sree Meenakshi Mills Ltd. v CIT, 1956 SCR 691, wherein a three judge Bench had explained succinctly the tests for the identification of questions of fact, questions of law and mixed questions of law and facts, the Bench stated that, “the test that is to be applied for the determination of a question of law is whether the rights of the parties before the court can be determined without reference to the factual scenario.”

Verdict

Hence, the Bench held that the issues raised by the appellant were questions of law which required, upon a comprehensive reading of the Bihar Electricity Act, a determination of whether tax can be levied on the supply of electricity by a power generator (which also manufactures sugar) supplying electricity to a distributor; and whether the State had the legislative competence to levy duty on the sale of electricity to an intermediary distributor.

Resultantly, the Bench was of the view that the High Court made an error in declining to entertain the writ petition and it would be appropriate to restore the proceedings back to the High Court for a fresh disposal. Accordingly, the appeal was allowed and the impugned judgment was set aside.

[M/s Magadh Sugar & Energy Ltd. v. State of Bihar, 2021 SCC OnLine SC 801, decided on 24-09-2021]

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Kamini Sharma, Editorial Assistant has put this report together

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Appearance by:

For the Appellant: Advocate SK Bagaria

For the State of Bihar: Sr. Advocate Saket Singh


*Judgment by: Justice Dr Dhananjaya Y Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Dhananjaya Y Chandrachud* and B. V. Nagarathna, JJ., had set aside the impugned interim order of Madras High Court holding it to be an attempt to re-write Rule 29(4) of the Copyright Rules 2013. The Bench remarked,

“The interim order converts the second proviso into a “routine procedure” instead of an exception (as the High Court has described its direction). This exercise by the High Court amounts to re-writing. Such an exercise of judicial redrafting of legislation or delegated legislation cannot be carried out.”

A few broadcasters had approached the Madras High Court to challenge the validity of Rule 29(4) of the Copyright Rules 2013 on the ground that it (i) violates Article 19(1)(a) of the Constitution; and (ii) is ultra vires Section 31D of the Act. The High Court, by its interim order had held that the duty which is cast on broadcasters in the notice to broadcast under Rule 29(1) is “apparently onerous”. Consequently, it directed that the petitioners before it may be permitted to resort to the second proviso to Rule 29(4) as a “routine procedure”, instead of an exception, subject to the duration of the ex post facto reporting being enlarged to fifteen days.

It was in the above backdrop that the instant appeal was initiated in the Supreme Court on the ground that the impugned interim order had the effect of re-writing Rule 29(4) of the Rules framed in pursuance of the provisions of Section 31D and Section 78(2)(cD) of the Copyright Act 1957.

Statutory Mandate

By the Copyright Amendment Act 2012, Parliament incorporated the provisions of Section 31D. Under sub-section (1) of Section 31D, a broadcasting organization which is desirous of communicating to the public by way of a broadcast or performance of a literary or musical work and sound recording which has already been published, may do so subject to compliance with the provisions of Section 31D. Section 31D(2) incorporates five requirements, namely:

  • a prior notice;
  • in the manner prescribed;
  • of the intention to broadcast the work;
  • stating the duration and territorial coverage of the broadcast; and
  • payment to the owner of rights in each work royalties in the manner and at the rate fixed by the Appellate Board.

Rule 29. Notice to owner for communication to the public of literary and musical works and sound recordings.—“(1) Any broadcasting organisation desirous of communicating to the public by way of broadcast or by way of performance of a published literary or musical work and sound recording under sub-section (1) of Section 31-D shall give a notice of its intention to the owner of the copyright and to the Registrar of Copyrights before a period of five days in advance of such communication to the public and shall pay to the owner of the copyright, in the literary or musical work or sound recording or any combination thereof, the amount of royalties due at the rate fixed by the Board in this regard:

Provided further that in case of communication to the public by way of broadcast or by way of performance of any published literary or musical work and sound recording or any combination thereof, in unforeseen circumstances, the notice shall, be given within twenty-four hours of such communication to the public:”

Contentions Raised

The appellants had challenged the interim order on the following grounds:

  1. By the interim order, the High Court re-wrote Rule 29(4), which is impermissible, in any event at the interim stage;
  2. The validity of Rule 29(4) was yet to be adjudicated upon and a presumption would attach to the constitutionality of both – the Rules and the Statute;
  3. There was no challenge to the validity of Section 31D in terms of which Rule 29 had been framed;
  4. The High Court had, in the course of its interim order, extended it only to the petitioners before it and to the broadcasters who had been impleaded as parties, as a result of which the pan-India operation of the Rule was left in the realm of uncertainty.

Observation and Analysis

Observing that the High Court had substituted the provisions of Rule 29(4) with a regime of its own, which was made applicable to the broadcasters and the petitioners before it, the Bench referred to the decision of the Constitution Bench in In Re: Expeditious Trial of Cases Under Section 13 138 of NI Act 188, wherein the Court had emphasized that, “the judiciary cannot transgress into the domain of policy making by re-writing a statute, however strong the temptations maybe.”

Reiterating that the court in the exercise of judicial review cannot supplant the terms of the provision through judicial interpretation by re-writing statutory language, the Bench expressed,

“Draftsmanship is a function entrusted to the legislature. Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute. For then, the judicial craft enters the forbidden domain of a legislative draft.”

Therefore, the Bench held that the High Court had entered the forbidden domain of legislative draft as it had held the broadcasters down to the requirement of prior notice, it had even modified the operation of Rule 29 by stipulating that the particulars which were to be furnished in the notice may be furnished within a period of fifteen days after the broadcast.

Hence, the Bench was of the view that an exercise of judicial re-drafting of Rule 29(4) was unwarranted, particularly at the interlocutory stage proceedings. The High Court was also of the view that the second proviso may be resorted to as a matter of routine, instead of as an exception and that the ex post facto reporting should be enlarged to a period of fifteen days (instead of a period of twenty four hours). Holding such exercise impermissible, the Bench expressed caution that it would substitute a statutory rule made in exercise of the power of delegated legislation with a new regime and provision which the High Court considers more practicable.

Accordingly, the appeals were allowed and the impugned interim order was set aside.

[Saregama India Ltd. v. Next Radio Ltd., 2021 SCC OnLine SC 817, decided on 27-09-2021]

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Report by: Kamini Sharma, Editorial Assistant, EBC Publishing Pvt. Ltd. 

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Counsels:

For the Appellants: Sr. Advocate Mukul Rohatgi and Sr. Advocate Akhil Sibal,

For the Respondents: Sr. Advocate Navroz Seervai and Sr. Advocate Neeraj Kishan Kaul


*Judgment by: Justice Dr. Dhananjaya Y Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has elaborately discussed the principles governing the grant of bail, especially in cases under the NDPS Act and has held that,

“… the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drug-trafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed.”

Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are :

  1. The Prosecutor must be given an opportunity to oppose the application for bail; and
  2. There must exist ‘reasonable grounds to believe’ that

(a) the person is not guilty of such an offence; and

(b) he is not likely to commit any offence while on bail.

Important rulings

Union of India v. Shiv Shanker Kesar, (2007) 7 SCC 798

Holding that bail may be cancelled if it has been granted without adhering to the parameters under Section 37 of the NDPS Act, the Court observed,

“7. The expression used in Section 37(1)(b)(ii) is “reasonable grounds”. The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged.

8. The word “reasonable” has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word “reasonable”.

[…]

10. The word “reasonable” signifies “in accordance with reason”. In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. [(2003) 6 SCC 315]

11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.”

Union of India v. Prateek Shukla, (2021) 5 SCC 430

Non-application of mind to the rival submissions and the seriousness of the allegations involving an offence under the NDPS Act by the High Court are grounds for cancellation of bail.

Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496

“9. … this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

  • whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

  • nature and gravity of the accusation;

  • severity of the punishment in the event of conviction;

  • danger of the accused absconding or fleeing, if released on bail;

  • character, behaviour, means, position and standing of the accused;

  • likelihood of the offence being repeated;

  • reasonable apprehension of the witnesses being influenced; and

  • danger, of course, of justice being thwarted by grant of bail.”

Mahipal v. Rajesh Kumar @ Polla, (2020) 2 SCC 118

“14. The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding.

[…]

16. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment.”

[Union of India v. Md. Nawaz Khan, 2021 SCC OnLine SC 782, decided on 22.09.2021]

___________________________________________________________

Counsels:

For appellants: SV Raju, Additional Solicitor General

For respondent: Advocate Rakesh Dahiya


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: In a case where a man was allegedly murdered by his wife and colleague, the bench of Dr. DY Chandrachud* and BV Nagarathna, JJ has refused to grant bail to the colleague on the ground that he cannot claim parity with the co-accused, i.e. the wife of the deceased, who was granted bail on the ground that she had a child of eleven months with her in jail. The Court noticed that the allegations in the FIR and the material that has emerged from the investigation indicated that a major role has been attributed to him in the murder of the deceased and hence, no bail was warranted.

Three important rulings on principles governing grant of bail

Ram Govind Upadhyay v. Sudharshan Singh, (2002) 3 SCC 598

“Grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained.”

Some of the considerations for grant of bail are:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496

It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

  1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  2. nature and gravity of the accusation;
  3. severity of the punishment in the event of conviction;
  4. danger of the accused absconding or fleeing, if released on bail;
  5. character, behaviour, means, position and standing of the accused;
  6. likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and
  7. danger, of course, of justice being thwarted by grant of bail.

Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, 2021 (6) SCC 230

Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance.

Read more: “Consent of parties cannot obviate the duty of the High Court to indicate its reasons”; Supreme Court explains the law on Bail

[Mahadev Meena v. Raveen Rathod, 2021 SCC OnLine SC 804, decided on 27.09.2021]

___________________________________________________________________

Counsels:

For appellant: Advocate Chitrangda Rastravara

For first respondent: Senior Advocate Siddhartha Dave


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Case BriefsSupreme Court

Supreme Court: In an important ruling on Res Judicata, the 3-judge bench of Dr. DY Chandrachud*, Vikram Nath and Hima Kohli, JJ has held that the issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact.

“Issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact. An alteration in the circumstances after the decision in the first suit, will require a trial for the determination of the plea of res judicata if there arises a new fact which has to be proved. However, the plea of res judicata may in an appropriate case be determined as a preliminary issue when neither a disputed question of fact nor a mixed question of law or fact has to be adjudicated for resolving it.”

“Best method” to decide the question of res judicata:

The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of section 11 CPC are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable.

In Syed Mohd. Salie Labbai (dead) by L.Rs v. Mohd. Hanifa, (1976) 4 SCC 780, it was enunciated that before a plea of res judicata can be given effect, the following conditions must be proved:

(1) that the litigating parties must be the same;

(2) that the subject-matter of the suit also must be identical;

(3) that the matter must be finally decided between the parties; and

(4) that the suit must be decided by a court of competent jurisdiction.

The verdict in Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141, further made clear that

“The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same.”

Twin test for the identification of whether an issue has been conclusively decided in the previous suit is:

  1. The necessity test: Whether the adjudication of the issue was ‘necessary’ for deciding on the principle issue.
  2. The essentiality test: Whether the judgment in the suit is based upon the decision on that issue.

Res Judicata: Question of fact or law or mixed question of law and fact?

It has earlier been held by the Supreme Court that a determination of whether res judicata is attracted raises a mixed question of law and facts [Madhukar D Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85 ; Ram Harakh v. Hamid Ahmed Khan, (1998) 7 SCC 484].

However, Justice K. Ramaswamy writing for a three-judge bench of this court in Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193 held that the principle of res judicata cannot be fit into the pigeonhole of ‘mixed question of law and facts’ in every case. Rather, the plea of res judicata would be a question of law or fact or a mixed question of both depending on the issue that is claimed to have been previously decided.

In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B Jeejeebhoy, (1970) 1 SCC 613, it was held that,

“A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent Court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata.

(…)

The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.”

Can res judicata be decided as a preliminary issue?

Yes. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced.

[The Jamia Masjid v. KV Rudrappa,  2021 SCC OnLine SC 792, decided on 23.09.2021]

______________________________________________________________

Appearances before the Court:

For appellant: Senior Advocate V Mohana

For respondents: Senior Advocate Basava Prabhu Patil and Advocate Balaji Srinivasan


*Judgment by: Justice Dr. DY Chandrachud

Know Thy Judge| Justice Dr. DY Chandrachud

Hot Off The PressNews

Writing to Justice Dr. DY Chandrachud, after waiting for a response from the Chief Justice of Madhya Pradesh High Court for over two months, the Madhya Pradesh States Bar Council has has drawn Justice Chandrachud’s attention towards the serious concerns of a large number of advocates having day-to-day hearings before the High Court and has sought for introduction of an effective, efficient, user-friendly, and convenient virtual hearing platform for convening the virtual Court proceedings.

Currently, since the onset of the COVID-19 pandemic, the Madhya Pradesh High Court has been carrying out its virtual hearings on the “Jitsi platform”, which is neither user-friendly nor convenient for both, the lawyers as well as litigants.

“As in the case of physical Court, the justice must be accessible’ convenient; in the case of virtual Courts, the softwares and the applications that are being employed for convening virtual Courts must be completely user friendly, which meets all the desired expectations which make the virtual courts efficient, non-interruptive and hassle-free.”

The letter highlights that in the ongoing COVID-I9 proceedings, where 25-30 advocates are appearing, most of the time are not able to comprehend submissions of the counsels, nor the lawyers appearing on the screen are able to fathom the oral observations of the Court. From the last two dates, the hearings had to be suspended due to technical glitches.

“This is nothing less than deliberately trivialising the justice dispensation system, wherein the whole system is continuing on the same application/software despite facing day-to-day regular problems with it, that too on a matter concerning the life and livelihood of the larger number of citizens of the state who are facing the wrath of the COVID-19 pandemic.”

The letter, hence, urged, Justice Chandrachud, who is the chairperson of the E Committee Project, to Iook into the matter and push for the introduction of appropriate steps, which may resolve the problems faced by the Iawyers of the country.


Also Read

Know Thy Judge| Justice Dr. DY Chandrachud

Know thy Judge

“Our ability to recognise others who are different is a sign of our own evolution. We miss the symbols of a compassionate and humane society only at our peril”.   

Justice Dr. D.Y. Chandrachud in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1


Early Life


Justice Dr. Dhananjaya Yeshwant Chandrachud was born on 11-11-1959 to former Chief Justice of India, Justice Y.V. Chandrachud. He practiced law at the Bomaby High Court and Supreme Court of India. He was designated as Senior Advocate by the Bombay High Court in June 1998 and in the same year was appointed as the Additional Solicitor General of India. He appeared in several important cases involving Rights of Bonded Women Workers, Rights of HIV Positive Workers, Contract Labour and Rights of Religious and Linguistic Minorities.[1]


Journey to becoming Supreme Court Judge


On 29th March 2000, Justice Chandrachud was appointed as Additional Judge of the Bombay High Court. On 31st October 2013, he took oath as the Chief Justice of the Allahabad High Court until he was appointed as a Judge of the Supreme Court on 13th May 2016.[2]

Did you Know? Justice Chandrachud is likely to serve as the Chief Justice of India for a period of 2 years starting from November, 2022 to November, 2024. His father, Justice Y.V. Chandrachud, was the longest serving Chief Justice of India. [Read more about Justice Y.V. Chandrachud here]


Recent and Notable Judgments that Justice Dr. D.Y. Chandrachud has been a part of


Nitisha v. Union of India, 2021 SCC OnLine SC 261

In major win for women Officer in Indian Army, the Division Bench of Dr. D.Y. Chandrachud and M.R. Shah, JJ., held that the administrative requirement imposed by the Indian Army authorities while considering the case of the Women Short Service Commissions Officers (WSSCO) for the grant of Permanent Commission (PC), of benchmarking these officers with the officers lowest in merit in the corresponding male batch is arbitrary and irrational. The Court hence, directed that such requirement shall not be enforced while implementing the decision in Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469

“It is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces, when the true picture of their service conditions tells a different story. A superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic.”

Read More

Mahendra K.C. v. State of Karnataka, 2021 SCC OnLine SC 1021

In a case where the Single Judge of Karnataka High Court had termed person committing suicide a ‘weakling’ and also made observations on how the behavior of the deceased before he committed suicide was not that of a person who is depressed and suffering from mental health issues, the bench of Dr. D.Y. Chandrachud and B.V. Nagarathna, JJ., held that such observations describing the manner in which a depressed person ought to have behaved deeply diminishes the gravity of mental health issues and that “The mental health of a person cannot be compressed into a one size fits all approach.”

“Individual personality differences manifest as a variation in the behavior of people. Therefore, how an individual copes up with a threat- both physical and emotional, expressing (or refraining to express) love, loss, sorrow and happiness, varies greatly in view of the multi-faceted nature of the human mind and emotions.”

Read More

Hariram Bhambhi v. Satyanarayan, 2021 SCC OnLine SC 1010

In a case where Rajasthan High Court had granted bail by merely “keeping in view the facts and circumstances of the case”, the bench of Dr. D.Y. Chandrachud and B.V. Nagarathna, JJ., held that such orders cannot pass muster. Noticing that there was absolutely no reasoning in the order of the High Court granting bail, after recording the submissions of the first respondent’s counsel apart from noting that the public prosecutor had opposed the bail, the Court said,

“The duty to record reasons cannot be obviated by recording submissions, followed by an omnibus “in the facts and circumstances” formula. Brief reasons which indicate the basis for granting bail are essential, for it is the reasons adduced by the court which indicate the basis of the order.”

Read More

Sarabjeet Singh Mokha v. District Magistrate, Jabalpur, 2021 SCC OnLine SC 1019

In a case where the Government caused unreasonable delay in considering the representation and thereafter failed to communicate the rejection to a person detained under Section 3(2) of National Security Act 1980 (NSA), the 3-judge bench of Dr. D.Y. Chandrachud, Vikram Seth and BV Nagarathna, JJ., held that the procedural rights of the detenu emanating from Article 22 of the Constitution and Section 8 of the NSA were not sufficiently protected in the present case. Dr. D.Y. Chandrachud, J., observed that, “Preventive detention in independent India is to be exercised with utmost regard to constitutional safeguards”.

“The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.”

Read More

Jalkal Vibhag Nagar Nigam v. Pradeshiya Industrial and Investment Corporation, 2021 SCC OnLine SC 960

The 3-judge bench of Dr. D.Y. Chandrachud, Vikram Nath and B.V. Nagarathna, JJ., upheld the validity of Sections 52 (1)(a), Section 55(b)(1) and Section 56 of the UP Water Supply and Sewerage Act, 1975 and held that the levy under Section 52 falls squarely under the ambit of Entry 49 of List II as it is in the nature of a tax and not a fee. The Court also went on to hold that the levy which is imposed under Section 52 is a tax on lands and buildings within the meaning of Entry 49 of List II.

Read More

V. Nagarajan v. SKS Ispat and Power Ltd., 2021 SCC OnLine SC 959

Dealing with the question as to when will the clock for calculating the limitation period run for proceedings under the Insolvency and Bankruptcy Code (IBC), the bench of Dr. D.Y. Chandrachud, Vikram Nath and B.V. Nagarathna, JJ., held that Sections 61(1) and (2) of the IBC consciously omit the requirement of limitation being computed from when the “order is made available to the aggrieved party”, in contradistinction to Section 421(3) of the Companies Act.

“… the omission of the words “from the date on which the order is made available” for the purposes of computation of limitation in Section 61(2) of the IBC, is a consistent signal of the intention of the legislature to nudge the parties to be proactive and facilitate timely resolution.”

Read More

CBI v. Thommandru Hannah Vijayalakshmi, 2021 SCC OnLine SC 923

The 3-judge bench of Dr. D.Y. Chandrachud, Vikram Nath and B.V. Nagarathna, JJ., held that a Preliminary Enquiry is not mandatory in all cases which involve allegations of corruption. The Court said that in case the information received by the CBI, through a complaint or a “source information”, discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence. Holding that the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, Prevention of Corruption Act or even the CBI Manual, the Court said that issuing a direction to that affect will be “tantamount to stepping into the legislative domain.”

Read More

Union of India v. VKC Footsteps India (P) Ltd., 2021 SCC OnLine SC 706

The division bench of Dr. DY Chandrachud and MR Shah, JJ has upheld the validity of Section 54(3) of the Central Goods and Services Tax Act, 2017 (CGST Act) which provides for refund of unutilised input tax credit (ITC) in certain cases.

“A claim to refund is governed by statute. There is no constitutional entitlement to seek a refund.”

Read More

Saregama India Limited v. Next Radio Limited, 2021 SCC OnLine SC 817

The Division Bench comprising of Dr. D.Y. Chandrachud and B. V. Nagarathna, JJ., set aside the impugned interim order of Madras High Court holding it to be an attempt to re-write Rule 29(4) of the Copyright Rules 2013. The Bench remarked that, “The interim order converts the second proviso into a “routine procedure” instead of an exception (as the High Court has described its direction). This exercise by the High Court amounts to re-writing. Such an exercise of judicial redrafting of legislation or delegated legislation cannot be carried out.”

Read More

Jamia Masjid v. K.V. Rudrappa, 2021 SCC OnLine SC 792

In an important ruling on Res Judicata, the 3-judge bench of Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ., has held that the issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact.

“Issues that arise in a subsequent suit may either be questions of fact or of law or mixed questions of law and fact. An alteration in the circumstances after the decision in the first suit, will require a trial for the determination of the plea of res judicata if there arises a new fact which has to be proved”.

Read More

Chief Election Commissioner of India v. M.R. Vijayabhaskar, 2021 SCC OnLine SC 364

In the instant matter, the Division Bench of Dr. D.Y. Chandrachud and M.R. Shah, JJ., addressed the larger issues of the freedom of speech and expression of the media, the right to information of citizens and the accountability of the judiciary to the nation, within the core question of “whether a constitutional body (the Election Commission of India) can set up a plea that constitutional status is an immunity from judicial oversight?” The Bench held that there was no substance in the prayer of the EC for restraining the media from reporting on court proceedings.

“This Court stands as a staunch proponent of the freedom of the media to report court proceedings. This we believe is integral to the freedom of speech and expression of those who speak, of those who wish to hear and to be heard and above all, in holding the judiciary accountable to the values which justify its existence as a constitutional institution.

Distribution of Essential Supplies and Services During Pandemic, In re, 2021 SCC OnLine SC 372

The 3-judge bench of Dr. D.Y. Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ., clarified that the purpose for taking the suo motu cognisance the “grim” situation of the country hit by the second wave of COVID-19 pandemic and non-availability of COVID-19 essentials was not to supplant or to substitute the judicial process which is being conducted in several High Courts across the country under Article 226 of the Constitution.

“The High Courts are well suited to make an assessment of the ground realities which prevail in each State and to find flexible solutions to deal with practical concerns of and the serious hardships faced by the citizens. Hence, there is no reason or justification to interdict the exercise of the jurisdiction of the High Courts in responding to the human problems faced by the citizens in the States and Union Territories and to find solutions with the cooperation of the authorities.”

Read More

Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427

In a case where the Bombay High Court failed to evaluate even prima facie of the most basic issue, thereby refusing bail to the accused, the bench of Dr. D.Y. Chandrachud and Indira Banerjee, JJ., reminded the High Courts and District Courts of their duty to ensure human liberty. Justice Dr. D.Y. Chandrachud who authored the decision, observed that, “Law should not become a ruse for targeted harassment”.

“Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting”.

Read More

State of Gujarat v. Narayan, 2021 SCC OnLine SC 949

The bench of Dr. D.Y. Chandrachud and B.V. Nagarathna, JJ., formulated “broad, general” principles governing rules for granting parole and furlough, holding that parole and furlough are distinct in nature and that although furlough can be claimed without a reason, the prisoner does not have an absolute legal right to claim furlough.

Read More

Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469

In this major verdict, the bench of Dr. D.Y. Chandrachud and Ajay Rastogi, JJ., ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service. Holding that the blanket non- consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law, the Court said that the Army has provided no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments. Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either.

Read more

Rajesh v. State of Haryana, (2021) 1 SCC 118

The 3-judge bench of Dr. DY Chandrachud, Indu Malhotra and Indira Banerjee, JJ., summarised the principles relating to conduct of a Test Identification Parade (TIP) and held that

“… the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.”

Read more

K.S. Puttaswamy v. Union of India (Privacy- 9 Judge),(2017) 10 SCC 1

Justice Chandrachud was part of the 9 Judge Bench which unanimously held that, Right to Privacy is a basic fundamental right. The Bench, which also comprised of J.S. Khehar, CJ. and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, S.K. Kaul and S.A. Nazeer, JJ., observed that Right to Privacy forms an intrinsic part of Art. 21 and freedoms guaranteed in Pt. III. It permeates core of Preambular philosophy underlying “liberty” and “dignity” as also human concepts of “life” and “personal liberty” enshrined in Art. 21 and wide ranging freedoms guaranteed under Pt. III, considered essential for a meaningful human existence. Dr. Chandrachud, J., writing for himself and on behalf of J.S. Khehar, CJ, R.K. Agrawal and S.A. Nazeer, JJ, said that Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. He added,

“While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being”.

Read more

Did you Know? The Privacy case also marked a unique moment in judicial history of India; as Justice Chandrachud overruled the ADM Jabalpur decision in which his father, Late Justice Y.V. Chandrachud was part of the majority. Terming the judgments rendered by the majority as “seriously flawed”, Dr. D.Y. Chandrachud, J., observed that-

H.R. Khanna, J. was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the State on whose mercy these rights would depend”.

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

In this landmark 5 -Judge Bench decision which became instrumental in upholding the rights of the LGBT community, Dipak Misra, CJ., and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ., held Section 377 IPC to be unconstitutional insofar it criminalised gay sex between consenting adults. The Bench reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

In his concurring opinion, Dr. D.Y. Chandrachud, J., while stating that, “It is difficult to right the wrongs of history. But we can certainly set the course for the Future, held that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations. Sexual orientation is recognised and protected by the Constitution.

Read more

Joseph Shine v. Union of India,(2019) 3 SCC 39

The 5-Judge Constitution Bench held Section 497 IPC and Section 198 (2) CrPC to be unconstitutional and violative of Articles 14, 15 (1) and 21 of the Constitution. Dipak Misra, C.J., delivered the leading judgment for himself and A.M. Khanwilkar, J. While R.F. Nariman, Dr D.Y. Chandrachud and Indu Malhotra, JJ., each delivered their separate concurring opinions. Referring to several foreign courts’ judgments and opinions of celebrated authors, Dr. Chandrachud, J. observed that-

“If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. Section 497 is founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Arbitrariness is writ large on the provision”.

Read more  

Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1

Stating that re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes, the 7 Judge Bench held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority Justice Chandrachud writing down the majority judgment for himself and S.A. Bobde, A.K. Goel, U.U. Lalit and L. Nageswara Rao, JJ., laid down the principles for promulgation of ordinances.

Read more

Common Cause v. Union of India,(2018) 5 SCC 1

The 5-judge Constitution Bench of Dipak Misra, CJ., and AK Sikri, AM Khanwilkar, Dr. D.Y. Chandrachud and Ashok Bhushan, JJ., held that the right to die with dignity is a fundamental right as held in Gian Kaur v. State of Punjab, (1996) 2 SCC 648 and that ‘passive euthanasia’, both, voluntary and involuntary, is permissible. In his concurring opinion, Dr. Chandrachud, J., observed that,

“While upholding the legality of passive euthanasia (voluntary and non-voluntary) and in recognising the importance of advance directives, the present judgment draws sustenance from the constitutional values of liberty, dignity, autonomy and privacy. In order to lend assurance to a decision taken by the treating doctor in good faith, this judgment has mandated the setting up of committees to exercise a supervisory role and function”.

Read more

 Shafin Jahan v. Asokan K.M, (2018) 16 SCC 368

The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. D.Y. Chandrachud, JJ., terming the instant case to be perfect example of, “patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel”, set aside the verdict of Kerala High Court wherein it had annulled the marriage between two consenting adults, namely, Hadiya and Shafin Jahan. Noting that the Kerala HC erred in its decision, Dr. D.Y. Chandrachud, J., in his concurring opinion, came down heavily upon the Kerala HC, stating that,

“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a “just” way of life or “correct” course of living for Hadiya. She has absolute autonomy over her person. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226. The High Court has entered into a domain which is alien to its jurisdiction in a habeas corpus petition. How Hadiya chooses to lead her life is entirely a matter of her choice”.

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Notable Dissents


Beghar Foundation v. K.S. Puttaswamy (Aadhaar Review-5 J.), (2021) 3 SCC 1

Seeking a review of the decision delivered by the Constitution Bench of the Supreme Court in K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), (2019) 1 SCC 1, the 5 Judge Bench of the Court comprising of A.M. Khanwilkar, Dr. D.Y. Chandrachud, Ashok Bhushan, S. Abdul Nazeer and B.R. Gavai, JJ., with a ratio of 4:1 dismissed this petition, while observing that, change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review.

However, Justice Dr. D.Y. Chandrachud gave his dissenting opinion on the issue and observed that constitutional principles of consistency and rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench.

“It is important to draw a distinction with a situation where a judgment attains finality and the view propounded by it is disapproved by a larger bench subsequently”.

K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge),(2019) 1 SCC 1

The 5- Judge Bench comprising of CJ Dipak Misra and A.K. Sikri, A.M. Khanwilkar, Dr. D.Y. Chandrachud and Ashok Bhushan, JJ., by a majority of 4:1, upheld the constitutional validity of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. Justice Chandrachud gave a 23-point conclusion to the opinion wherein he dissented from the majority. In his opinion, the entire Aadhaar programme, since 2009, suffers from the constitutional infirmities and violations of fundamental rights-

“Creating strong privacy protection laws and instilling safeguards may address or at the very least assuage some of the concerns associated with the Aadhar scheme which severely impairs informational self-determination, individual privacy, dignity and autonomy”.

In a sharp criticism on passing of the Aaadhar Act as Money Bill within the meaning of Art.110 of the Constitution, Dr. Chandrachud, J., observed that-

“There is a constitutional trust which attaches to the empowerment of the Speaker of the Lok Sabha to decide whether a legislative measure is a Money Bill. Entrustment of the authority to decide is founded on the expectation that the Speaker of the Lok Sabha will not dilute the existence of a coordinate institution in a bicameral legislature. A constitutional trust has been vested in the office of the Speaker of the Lok Sabha. By declaring an ordinary Bill to be a Money Bill, the Speaker limits the role of the Rajya Sabha. This power cannot be unbridled or bereft of judicial scrutiny”. 

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Jindal Stainless Ltd v. State of Haryana,(2017) 12 SCC 1

The 9-judge bench, by a ratio of 7:2, upheld the validity of the entry tax imposed by the States on goods imported from other States. It was held that taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India and that the word ‘Free’ used in Article 301 does not mean “free from taxation”. Delivering a dissenting opinion Dr. D.Y. Chandrachud, J., observed that,

“In order to determine whether a law providing for the imposition of a tax constitutes a restriction on the freedom of trade, commerce and intercourse, the principle that must be applied is whether the direct and inevitable effect or consequence of the law is to impede trade and commerce. The direct and inevitable consequence for the purposes of Part XIII of the Constitution is not the same as an infringement of the fundamental right to carry on an occupation, trade or business under Article 19(1)(g)”. He further observed that, “Article 301 sub-serves the constitutional goal of integrating the nation into an economic entity comprising of a common market for goods and services”.

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Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629 

In a 4:3 verdict, the 7-Judge Bench held that an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voters’. Writing the dissenting opinion for himself and Adarsh K. Goel and U.U. Lalit, JJ.; Dr. D.Y. Chandrachud, J., observed that ‘his’ as in Section 123(3) of RP Act does not refer to the religion, race, caste, community or language of the voter. Dr. Chandrachud, J., made a very significant observation in his dissent-

“Our Constitution recognises the broad diversity of India and, as a political document, seeks to foster a sense of inclusion. It seeks to wield a nation where its citizens practise different religions, speak varieties of languages, belong to various castes and are of different communities into the concept of one nationhood. The Indian State has no religion nor does the Constitution recognise any religion as a religion of the State. India is not a theocratic State but a secular nation in which there is a respect for and acceptance of the equality between religions”.

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Romila Thapar v. Union of India, (2018) 10 SCC 753 

In the instant case wherein 5 human rights activists were charged and arrested under the provisions of Unlawful Activities (Prevention) Act, 1967 and the 3 Judge Bench of the Court with a ratio of 2:1 (Dipak Misra CJ., and A.M. Khanwilkar, J.) rejected their prayer seeking appointment of SIT and court-monitored investigation; Justice D.Y. Chandrachud dissented with the majority. He observed that, “Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes”. Taking the view that a Special Investigating Team should be appointed to pursue the matter, Dr. Chandrachud, J., stated that,

“The purpose of the direction which I propose to give is to ensure that the basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty”.


[1] Bombay High Court, Hon’ble Former Justices

[2] Supreme Court of India, Chief Justices and Judges