Cases ReportedSupreme Court Cases

SCC Issue dated March 7th, 2021 (Vol. 2 Part 1)

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

Short Notes: 17

Advocates who appeared in the case:

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

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

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

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

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

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

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

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

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

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

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

Cases ReportedSupreme Court Cases

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

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

Short Notes: 12

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

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

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

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

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

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

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

Cases ReportedSupreme Court Cases

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

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

Short Notes: 21

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

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

Cases ReportedSupreme Court Cases

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

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

Short notes: 8

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

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

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

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

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

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

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

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

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

Cases ReportedSupreme Court Cases

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

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

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

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

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

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

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

Cases ReportedSupreme Court Cases

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

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

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

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Cases Reported | Supreme Court Cases

Cases ReportedSupreme Court Cases

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

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

Counsels heard:

Amicus Curiae Siddhartha Dave

Attorney General for India K.K. Venugopal,

Addl. Solicitor General of India Madhvi Divan,

Advocate Nitya Ramakrishnan for the intervenor

Read the following analytical articles:

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

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

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

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

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

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

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

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

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

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

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

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

Also Read:

2021 SCC Vol. 1 Part 1

Cases ReportedSupreme Court Cases

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

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

Number of Short Notes: 29

Counsels who appeared in the matter:

Petitioner’s Advocate: Vivek Jain      

Respondent’s Advocate: Jaikriti S. Jadeja 

Read the following analytical articles:

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

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

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

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

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

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

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

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

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

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

Cases ReportedSupreme Court Cases

Constitution of India — Arts. 19(1)(g) and (6) — Virtual currencies (VCs) or Cryptocurrencies — Reasonableness and proportionality of restrictions on right to carry on trade/business concerning VCs — Determination: RBI Circular dt. 6-4-2018 directing entities regulated by it (i) not to deal in virtual currencies nor to provide services for facilitating any person or entity in dealing with or settling virtual currencies, and (ii) to exit the relationship with such persons or entities, if they were already providing such services to them is not valid due to its being a disproportionate measure, despite the issuance of the circular being within the ambit of RBI’s powers. Test of proportionality, as laid down in Modern Dental College & Research Centre, (2016) 7 SCC 353, namely: (i) that the measure is designated for a proper purpose, (ii) that the measures are rationally connected to the fulfilment of the purpose, (iii) that there are no alternative less invasive measures, and (iv) that there is a proper relation between the importance of achieving the aim and the importance of limiting the right, is not satisfied by the impugned circular, when virtual currencies are themselves not banned. [Internet & Mobile Assn. of India v. Reserve Bank of India, (2020) 10 SCC 274]

Consumer Protection — Services — Banking/Shares/Securities and other Financial Services — Hire-purchase: Repossession of vehicle by financier/owner in accordance with the terms and conditions of the hire-purchase agreement, hired under a hire-purchase agreement, on default of payment by hirer and nonreleasing of the same on the promise of payment does not amount to deficiency of service. True nature of hire-purchase agreement contrasted with loan transaction (wherein goods are sold to customer and then hypothecated or pledged back to financier by the customer), explained. Financier, as opposed to the hirer is considered as the real owner of the hired vehicle in transaction which is clearly a hire-purchase agreement (and is found not to be a loan transaction). A hire-purchase agreement is an executory contract of sale, conferring no right in rem on the hirer, until the conditions for transfer of the property to him have been fulfilled and the financier continues to be the owner of the goods under a hire-purchase agreement while the hirer simply pays for use of the goods and for the option to purchase them. Until the option to purchase is exercised by the hirer upon payment of all amounts agreed upon between the hirer and the financier, the hirer remains a bailee of the goods covered by the hire-purchase agreement. Whether the transaction between a financier and a purchaser/hirer is a hire-purchase transaction, or a loan transaction, is to be determined from the terms of the agreement, considered in the light of surrounding circumstances. However, even a loan transaction, secured by right of seizure of a financed vehicle, confers licence to the financier to seize the vehicle. [Magma Fincorp Ltd. v. Rajesh Kumar Tiwari, (2020) 10 SCC 399]

Customs Tariff Act, 1975 — S. 9-A — Anti-dumping duty — Purpose of — Dumping — Meaning of and factors constituting it: Completion of investigation into allegations of dumping, within prescribed time period is essential. Designated Authority enlarging period of investigation and seeking contemporaneous data for enlarged time-frame when circumstances so warrant, permissible. Such action cannot be termed as arbitrary. [Directorate General of Trade Remedies v. Andhra Petrochemicals Ltd., (2020) 10 SCC 209]

Education Law — Reservation of Seats/Quota/Exemption/Priority/Affirmative Action/Reverse Discrimination — Generally — Permissibility, Nature and scope — Reservation — Academic session from which to be implemented: In this case, it was observed that since Amending Act does not contemplate that benefit of reservation has to be granted in ongoing academic session, therefore, University was at liberty to decide to extend benefit from next academic session. Provision for commencement of Amending Act “at once” means implementation of the Act within a reasonable time. Decision of Executive Council of University was taken within a reasonable time and cannot be said to be arbitrary as admission process was initiated before Amending Act came into force. Therefore, it was not possible to give effect to provisions of the Amending Act from academic session 2019-2020. Hence, action of University to grant benefit of Amending Act from next academic session of 2020 2021 cannot be said to be unreasonable and is a possible decision in terms of Amending Act. [Shreyas Sinha v. W.B. National University of Juridical Sciences, (2020) 10 SCC 227]

Registration Act, 1908 — S. 17(2)(vi): Compromise decree comprising immovable property which is the subject-matter of the suit or proceeding in question, held, does not require registration. It is only a compromise decree comprising immovable property other than that which is the subject-matter of suit or proceeding in question which requires registration. [Gurcharan Singh v. Angrez Kaur, (2020) 10 SCC 250]

Registration Act, 1908 — S. 17(2)(vi): Compromise decree comprising immovable property which is the subject-matter of the suit or proceeding in question, held, does not require registration. It is only a compromise decree comprising immovable property other than that which is the subject-matter of suit or proceeding in question, which requires registration. [Mohd. Yusuf v. Rajkumar, (2020) 10 SCC 264]

Service Law — Pension — Entitlement to pension: In this case, there was absorption of respondents in Rajasthan SRTC on closing down of Rajasthan State Agro Industries Corporation Ltd. vide order dt. 3-10-1996. Pursuant to Noti. dt. 12-2-1997 applications were invited from absorbed employees to opt for either CPF Scheme or GPF and Pension Scheme, respondents opted for pension within stipulated time. Respondents were governed by CPF Scheme in erstwhile Corporation. Regional Provident Fund Commissioner transferred contribution of employees as well as of employer to Rajasthan SRTC. Denial of pension on ground of non-receipt of capital amount from erstwhile Corporation, held, not proper. [Rajasthan SRTC v. Goverdhan Lal Soni, (2020) 10 SCC 234]

Cases ReportedSupreme Court Cases

Arbitration and Conciliation Act, 1996 — Ss. 47 to 49 r/w S. 43 — Foreign award — Limitation period for filing application for its enforcement: Applicability of Art. 136 of the Limitation Act, 1963 is restricted to decrees of a civil court in India. Deeming fiction under S. 49 i.e. for consideration of arbitration award as a deemed decree of the court is not applicable in determining the limitation period governing enforcement of foreign awards. [Union of India v. Vedanta Ltd., (2020) 10 SCC 1]

Constitution of India — Art. 21: Investigation by an officer who himself is informant/complainant in the case is not barred under NDPS Act or CrPC. Hence, in a case where informant officer himself is investigator, by that itself it cannot be said that investigation is vitiated on ground of bias or the like factor. Question of bias or prejudice would depend upon facts and circumstances of each case. [Mukesh Singh v. State (NCT of Delhi),(2020) 10 SCC 120]

Criminal Procedure Code, 1973 — S. 177 — Jurisdiction of criminal courts: Principles and factors that need to be kept in mind while determining jurisdiction (particularly territorial jurisdiction) of criminal courts in inquiries and trials, explained in detail. [Kaushik Chatterjee v. State of Haryana, (2020) 10 SCC 92]

Criminal Procedure Code, 1973 — S. 438 — Anticipatory bail: In this case, blanket direction by the High Court restraining the IO from taking coercive measures against respondent-accused, directed to be stayed, because the respondents found protected by an interim stay of arrest by the Sessions Court. [Neeharika Infrastructure (P) Ltd. v. State of Maharashtra, (2020) 10 SCC 118]

Criminal Procedure Code, 1973 — Ss. 437(3), 438(2) and 439(1)(a) — Bail — Imposition of conditions — Relevant considerations for: Human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case. [Parvez Noordin Lokhandwalla v. State of Maharashtra, (2020) 10 SCC 77]

Election — Election Petition/Trial — Exercise of Power — Relief — Declaration of election petitioner as returned candidate, on succeeding in election petition: Rule for exclusion of votes secured by corrupt practices by returned candidate in computation of total votes and consequential declaration of candidate who secured the next highest number of votes, as duly elected can be applied only when there are just two candidates at an election. If there are more than two candidates like in instant case, the aforesaid rule cannot be made applicable. [Muniraju Gowda P.M. v. Munirathna, (2020) 10 SCC 192]

Penal Code, 1860 — S. 306 — Ingredients: Principles summarised regarding what are the necessary ingredients for the offence under this section. [Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200]

Penal Code, 1860 — Ss. 302, 392, 420, 201 and 34 — Murder trial — Circumstantial evidence: In this case, prosecution failed to establish and prove complete chain of events. Contradictions and lacunae in prosecution case noted by trial court, held, were not minor in nature, hence, acquittal was restored. [Anwar Ali v. State of H.P.,(2020) 10 SCC 166]

 Penal Code, 1860 — Ss. 90, 375, 376, 323 and 341 — Consent of prosecutrix to physical relationship: Consent given under misconception of fact is no consent in eyes of law but, misconception of fact, has to be in proximity of time to occurrence, and cannot be spread over period of 4 yrs, as in this case. Furthermore, appellant did not make any false promise or intentional misrepresentation of marriage, which led to establishment of physical relationship between parties. Prosecutrix was herself aware of obstacles in their relationship because of different religious beliefs. In this case, consent to physical relationship by prosecutrix was conscious, and informed choice was made by her, after due deliberation, it being spread over long period of time, coupled with conscious positive action not to protest. Conviction of accused under Ss. 376, 323 and 341, reversed. [Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108]

Cases ReportedSupreme Court Cases

Central Excise Act, 1944 — Ss. 4(1)(a) and (b) (as existing prior to 1-7-2000) r/w Central Excise (Valuation) Rules, 1975 — Normal price, in undervaluation cases — Method for determination of: The method of valuation prescribed under S. 4(1)(a), as it stood before 1-7-2000, was directly linked to the normal price for an ordinary sale in the course of wholesale trade and in cases where normal price was not ascertainable, the same would fall under S. 4(1)(b) and the valuation in such cases had to be done in terms of the Central Excise (Valuation) Rules, 1975. Further, the normal price need not be the same universally, but could vary from one class of buyers to another or from one place of removal to another. [CCE v. Cera Boards & Doors, (2020) 9 SCC 662]

Education Law — Examination — Unfair means/Cheating/Leakage of question Paper/Cancellation of examination — Fraudulent examination process: Jharkhand State open exam process, held, is a complete fraud. It is fault of University to some extent which did not carry out an appropriate verification as also State Government which should have kept a watch for such fraudulent exam systems which operate out of one room. Since exam system is found fraudulent, University and State Government should take immediate corrective action and also bring defaulters to book. Based on such a fraudulent exam system, petitioner students will never have a recognised plus two status and to give such students opportunity to get a degree from University will create a great anomaly. [Sahir Sohail v. Dr A.P.J. Abdul Kalam Technical University, (2020) 9 SCC 696]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Epidemics and Pandemics — COVID-19 Pandemic: In this case, interim bail/parole/furlough has been granted to undertrials/convicted persons to decongest jails to prevent spread of COVID-19 Virus. Denial of said benefit to certain class of undertrials/convicted persons based on nature of offence and length of sentence, held valid as reasonable classification where circumstances so warrant, is permissible. Intention of order passed in Contagion of COVID-19 Virus in Prisons, In re, 2020 SCC OnLine SC 344, clarified. However, liberty granted to petitioners to approach the High-Powered Committee set up in terms of above order of Supreme Court, if situation required modification of classification. Further, liberty granted to undertrials/convicted persons concerned to approach competent court if any discrimination is alleged. [National Alliance For People’s Movements v. State of Maharashtra, (2020) 9 SCC 698]

Registration Act, 1908 — S. 17(2)(v) or S. 17(2)(vi) — Family settlement/arrangement: It is cl. (v) of S. 17(2) which is attracted in the case of a family settlement/arrangement, which pertains to execution of any document creating or extinguishing right, title or interest in an immovable property amongst the family members. Thus, the dictum in Kale, (1976) 3 SCC 119 is attracted. S. 17(vi) of the 1908 Act is not attracted. Hence, the issue of compulsory registration of a family settlement would depend on whether document in dispute: (A) created or transferred for the first time a right in immovable property, or, (B) was a memorandum which only recorded pre-existing rights in immovable property or arrangement(s) or terms already settled between the parties in respect of immovable property. It is only in Case (A) that the document would require compulsory registration. [Ravinder Kaur Grewal v. Manjit Kaur, (2020) 9 SCC 706]

Insolvency and Bankruptcy Code, 2016 — Ss. 30(2), 30(4) and 31 r/w S. 61(3) — Decision of Committee of Creditors (CoC) qua feasibility and viability of resolution plan: If all the factors that need to be taken into account for determining whether or not the corporate debtor can be kept running as a going concern have been placed before the Committee of Creditors and CoC has taken a conscious decision to approve the resolution plan, then the adjudicating authority cannot interfere with the same. [Karad Urban Coop. Bank Ltd. v. Swwapnil Bhingardevay, (2020) 9 SCC 729]

Education Law — Professional Colleges/Education — Law Schools/Colleges — Admission: In this case, admission notification was released by National Law School of India University, Bengaluru for admission to five-year integrated BA, LLB (Hons.) Programme, 2020-21. Common Law Admission Test (CLAT) was already been notified and R-1 was also part of it and was postponed to 28-9-2020. Respondents directed to file their reply. Further directed that neither result shall be declared nor any admission be made consequent thereto. Conducting of examination shall be subject to outcome of writ petition. [Rakesh Kumar Agarwalla v. National Law School of India University,(2020) 9 SCC 746]

Telecommunications Laws — Telecom Agreement/Telecom Licence/Spectrum Allocation/Scams/Auction/Licence Fees — Licence fees — National Telecom Policy, 2012 — Sharing Guidelines dt. 24-9-2015: Past AGR dues of the original licensee is not a liability of the operator permitted to share the spectrum of the original licensee. Spectrum sharing is a policy that permits the sharing of radio access network equipment of operators. Further, the Sharing Guidelines do not stipulate anything about the past dues of the sharing operators. Further, in the case of sharing spectrum, the liability of the operator would be to the extent of using the spectrum only, and the liability of the sharing operator would be to the extent of the remaining spectrum used by it. Therefore, there shall not be any liability of the said operator with respect to payment of the past dues (post shared) of the sharing operator licensee. [Union of India v. Assn. of Unified Telecom Service Providers of India, (2020) 9 SCC 748]

National Green Tribunal Act, 2010 — Ss. 14, 2(c), 2(m), 19 and 26: NGT does not have the power to issue orders to State Government to direct and/or instruct and/or order dealers, outlets and petrol pumps not to supply fuel to vehicles which did not have a valid pollution under control (PUC) certificate. A vehicle not complying with the requirement of displaying a valid PUC certificate cannot be debarred from being supplied with fuel by any dealer or any outlet or petrol pump. Other measures as contemplated in the various Environmental Acts and Rules applicable can be imposed in accordance with law by NGT to ensure compliance with PUC certificate requirements, but not stoppage of supply of fuel. [State of M.P. v. Centre for Environment Protection Research & Development, (2020) 9 SCC 781]

Motor Vehicles Act, 1988 — Ss. 173 and 166 — New plea: Plea of contributory negligence, false computation of income, compensation under different heads is not maintainable before Supreme Court for the first time. [Lalan D. v. Oriental Insurance Co. Ltd., (2020) 9 SCC 805]

Constitution of India — Art. 136: SLP preferred only against order dismissing review petition is not maintainable when main judgment of High Court has not been challenged. [MCD v. Yashwant Singh Negi, (2020) 9 SCC 815]

Cases ReportedSupreme Court Cases

Income Tax — Income — Income arising within or earned in India — Income derived from business operation in India — Taxability of — Exemption under applicable Double Taxation Avoidance Agreement (DTAA): In this case, Art. 5(3) of the DTAA predicated that notwithstanding the preceding provisions of the Article concerned, which would mean Arts. 5(1) and 5(2), the establishment in question would still not be a PE, if any of the clauses in Art. 5(3) are applicable. It was held by the Supreme Court that the nature of activities carried on by respondent through its liaison office in India, as permitted by RBI, are in the nature of “preparatory or auxiliary character”. Hence, they are covered by Art. 5(3)(e) of the DTAA between India and UAE, and fixed place used by respondent as liaison office in India, would not qualify as PE in terms of Arts. 5(1) and 5(2) of the said DTAA on account of non obstante and deeming clause in Art. 5(3) of the DTAA. Hence, the said activity of the respondent is not amenable to tax liability in terms of Art. 7 of the DTAA. [Union of India v. UAE Exchange Centre, (2020) 9 SCC 329]

Maharashtra Regional and Town Planning Act, 1966 (37 of 1966) — S. 88 and Ch. VII (Ss. 126 to 129) — Cohesive and harmonious construal of S. 88: S. 88 cannot be read in isolation and has to be read along with provisions under Ch. VII (Ss. 126 to 129). Thus, held, mere declaration of Town Planning Scheme does not result in vesting of the land in question in the authority concerned, unless the land has been acquired properly in accordance with law. [Hari Krishna Mandir Trust v. State of Maharashtra, (2020) 9 SCC 356]

Civil Procedure Code, 1908 — S. 11 — Res judicata: Issue only collaterally or incidentally decided in earlier proceedings, held, would not operate as res judicata in proceedings where the issue is directly and substantially involved. Test to be applied to ascertain whether the matter was directly and substantially in issue, explained. The test is whether the issue was necessary to be decided for adjudicating on the principal issue and was decided: if it is clear that the earlier judgment was in fact based upon that decision, then it would be res judicata in a latter case, but not otherwise. Such determination is to be made on the facts of each case. Examination of pleadings, issues framed and judgment of the earlier proceedings is required. [Nand Ram v. Jagdish Prasad, (2020) 9 SCC 393]

Aviation Law — General Principles re Liability/Expected Service Standards for Carriage of Goods and Persons/Deficiency in service: Departure of flight without passenger who had been issued boarding pass does not amount to deficiency of service, when such passenger fails to reach the boarding gate in time. [Indigo Airlines v. Kalpana Rani Debbarma, (2020) 9 SCC 424]

 Arbitration and Conciliation Act, 1996 — S. 34: Limitation period for challenging arbitral award: Maximum outer limit of three months plus 30 days is mandatory. Where challenge to award was filed when award was at execution stage, it was well beyond the above maximum limitation period. [BBM Enterprises v. State of W.B., (2020) 9 SCC 448]

Constitution of India — Art. 217 — Appointment of High Court Judges — Inordinate delays in making recommendation to fill vacancies by High Court Collegiums: High Court Collegiums must make endeavour to recommend names against vacancies as early as possible even if they are not made at one go. Some Courts do not recommend fresh names without earlier list being cleared. It was held that there is no such impediment and it should be a continuing process of recommending names without waiting for result of earlier recommendations till all recommendations are made. Otherwise, time period to process names is such that by time appointments take place, another set of vacancies arise which brings problem of vacancies to square one. Detailed report regarding existing and expected vacancies called for from all High Courts, explaining as to what is the time period within which recommendations can be expected to be made. [PLR Projects (P) Ltd. v. Mahanadi Coalfields Ltd., (2020) 9 SCC 452]

Environment Law — Environmental Clearance/NOC/Environment Impact Assessment (EIA) — Grant of/Quashment of/Irregularity in/Judicial review: In this case there were issues whether entire material including report of Joint Committee which was relevant to consider case of parties herein was available before NGT and whether NGT was justified in proceeding with matter in manner as it has presently done. Hence, the matter was remanded to NGT for consideration afresh after taking into account the relevant report which had now become available and additional relevant material if sought to be adduced by the parties. [Wonder Projects Development (P) Ltd. v. Union of India, (2020) 9 SCC 454]

Ancient and Protected Monuments, Archaeology, Art and Antiquities — Administration, Conservation, Maintenance, Refurbishment, Alteration, etc. of Monuments — Mahakaleshwar Temple, Ujjain: Direction issued regarding steps to be taken to prevent deterioration of Shivalinga and steps to be taken to preserve temple structure, including Chandranageshwar Temple. [Sarika v. Mahakaleshwar Mandir Committee, (2020) 9 SCC 460]

Criminal Procedure Code, 1973 — S. 438 — Anticipatory bail cases — Posting of: It is the duty of the Registry of court to post such cases with due diligence. In this case, order in anticipatory bail case made returnable in four weeks, but not listed for almost a year. Registry directed to furnish an explanation on the administrative side as to why the matter was not listed as directed after four weeks, more so, in the nature of matter being of anticipatory bail. [Mahtab Alam v. State of Bihar, (2020) 9 SCC 466]

Commercial Courts Act, 2015/Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 — S. 12-A — Time prescribed under for completing process of compulsory pre-litigation mediation and settlement: Said time shall stand extended from time when COVID-19 Lockdown is lifted plus 45 days thereafter. However, if period of Lockdown plus 45 days has expired, no further period shall be liable to be excluded. [Cognizance For Extension of Limitation, In re, (2020) 9 SCC 468]

Service Law — Departmental Enquiry — Judicial review/Validity — Scope: Power of judicial review is distinct from appellate power exercised by departmental appellate authority. Further held, judicial review is evaluation of decision-making process and not merits of decision itself which is to ensure fairness in treatment and not fairness of conclusion. Judicial review ought to be used to correct manifest errors of law or procedure which might result in significant injustice or violation of principles of natural justice. Moreover, where appellate or reviewing authority comes to a different conclusion, ordinarily decision under appeal ought not to be disturbed insofar as it is plausible and not perverse. [Pravin Kumar v. Union of India, (2020) 9 SCC 471]

Trusts and Trustees — Religious and Charitable Endowments and Trusts — Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib Act, 1956 (37 of 1956) — Ss. 6(1)(viii), 6(2), 6(3), 2(e) & 2(c) and Ch. II r/w R. 6 of the 1958 Rules: Nomination of four members under S. 6(1)(viii) by State Government to the statutory Gurudwara Board, not permissible. S. 6(3) does not apply to the nomination to be made under S. 6(1)(viii) and the exclusive statutory authority for making the nomination of four members under S. 6(1)(viii) is vested in the Diwan. Expression “Diwan” under 1956 Act is an institution and not an individual person. [Bahginder Singh v. Manjieeth Singh, (2020) 9 SCC 484]

Civil Procedure Code, 1908 — Ss. 96, 100 and Or. 1 R. 10 — Appeal from original decree — Maintainability — Locus standi — “Person aggrieved” — Rejection of leave to appeal — Legality: In this case, judgment and decree not being a judgment in rem, holding that certain transactions, in no way concerning the interest of the applicant appellants, were time-barred and granting injunctive relief in respect of only the parties to the suits concerned. Appellants could in no way establish how their interests were affected in any way by decree in question. Thus, held, appellants failed to demonstrate that they were prejudicially or adversely affected by decree in question or that any of their legal rights were jeopardised so as to bring them within ambit of expression “person aggrieved”. [V.N. Krishna Murthy v. Ravikumar, (2020) 9 SCC 501]

Stamp Act, 1899 — S. 40(1)(b) — Imposition of extreme penalty i.e. ten times the amount of the proper duty or deficient portion thereof — Exercise of discretion in respect of: The amount of penalty not exceeding ten times is not an amount to be imposed as a matter of course. Neither is imposition of penalty of ten times under S. 40(1)(b) automatic nor can it be mechanically imposed. Imposition of the extreme penalty i.e. ten times of the duty or deficient portion thereof cannot be based on the mere factum of evasion of duty. Reasons such as fraud or deceit in order to deprive the Revenue or undue enrichment are relevant factors to arrive at a decision as to what should be the extent of penalty under S. 40(1)(b). [H.C. Dhanda Trust v. State of M.P.,(2020) 9 SCC 510]

Penal Code, 1860 — S. 302 or S. 304 Pt. II [S. 300 Exception 4]: In this case, there was assault by accused on head of deceased with lathi, leading to his death in hospital the next day. It was held that circumstances, manner of assault, nature and number of injuries, all have to be considered cumulatively, to decipher intention or knowledge, as the case may be. Assault was not premeditated but took place in heat of passion due to land dispute. The act was done with knowledge that it was likely to cause death, but without any intention to cause death. Hence, conviction altered from S. 302 to S. 304 Pt. II IPC. As accused had already undergone maximum period of sentence prescribed therein, therefore, he was directed to be set at liberty forthwith. [Jugut Ram v. State of Chhattisgarh, (2020) 9 SCC 520]

Penal Code, 1860 — S. 302 or S. 304: Where death was due to single injury caused by accused, legal position summarised whether S. 302 would be attracted or not. [Stalin v. State, (2020) 9 SCC 524]

T.N. Urban Land (Ceiling and Regulation) Act, 1976 (24 of 1978) — Ss. 20 and 21 — Exemption granted under the Act — Non-compliance with conditions of — Measures that may be taken by competent authority — Scope of: There must be strict compliance with statutory regime. Imposition of sanctions beyond what is expressly permitted by statute is not permissible. Further held, any undertaking given by the party concerned cannot expand the statutory jurisdiction of the authority concerned. Competent authority is only permitted by the 1976 Act to withdraw the order of exemption or to declare such land to be excess land under S. 21, with its attendant consequences as provided under the 1976 Act. [Shridhar C. Shetty v. Collector, (2020) 9 SCC 537]

Constitution of India — Art. 254 — Repugnancy under Art. 254 — Meaning of: Preconditions for question of repugnancy under Art. 254, when can be considered. Principles summarised regarding tests for whether laws are repugnant to each other. Doctrine of repugnancy not attracted if laws partially or incidentally cover the same area in a different context and to achieve a different purpose. In case of repugnancy, Central law prevails over State law. [West U.P. Sugar Mills Assn. v. State of U.P., (2020) 9 SCC 548]

Wealth Tax Act, 1957 — Ss. 3 and 21-AA — Incidence of wealth tax: Law explained regarding persons to be assessed under wealth tax. Social club such as appellant Bangalore Club, held, not covered under S. 3(1) if looked at in isolation without considering S. 21-AA. [Bangalore Club v. CWT, (2020) 9 SCC 599]

Insolvency and Bankruptcy Code, 2016 — S. 7 — Acknowledgement of debt by corporate debtor in earlier insolvency proceedings — Relevance of: Counter-affidavit of corporate debtor in earlier petition, held, was not a pleading of the insolvency applicant in the earlier insolvency proceedings. Rather, it was an admission of the outstanding debt by the corporate debtor and was admissible qua debt acknowledgement in later insolvency proceedings. [Shri Equipment Finance Ltd. v. Rajeev Anand, (2020) 9 SCC 623]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 42, 55 and 20(b)(ii)(B): In this case of seizure of ganja there was official witnesses and support from independent witnesses was absent. Testimony of police officials was found reliable and trustworthy. No enmity was found between the police witnesses and the accused. No such defence was taken in the statement under S. 313 CrPC.  It was held that legally, testimony of the official witnesses cannot be rejected on the ground of non-corroboration by independent witness. Resultantly, absence of independent support to the official witnesses, held, not fatal. Compliance with Ss. 42 and 55 was fully proved on the record. Sample seized and sealed was also proved to be sent to the FSL. Hence, conviction was affirmed. [Rizwan Khan v. State of Chhattisgarh, (2020) 9 SCC 627]

Criminal Procedure Code, 1973 — S. 197 — Sanction for prosecution — When not to be accorded: In this case, there was exoneration on merits by CVC, where allegation found to be not sustainable at all and accused held innocent. Criminal prosecution on same set of facts and circumstances, cannot be allowed to continue, on underlying principle of higher standard of proof in criminal cases. No sanction ought to be accorded and no offence under IPC made out. Judgment of courts below, set aside, and accused discharged from offences under IPC. [Ashoo Surendranath Tewari v. CBI, (2020) 9 SCC 636]

Motor Vehicles Act, 1988 — Ss. 166 and 173 — Fatal accident — Compensation — Consortium — What is and when may be awarded: Expression “consortium” includes spousal consortium, parental consortium as well as filial consortium. It is certainly not the law that consortium is only payable as a spousal consortium and consortium is not payable to children and parents. Apart from spousal consortium, parental and filial consortium, held, are payable in fatal accident claim. [New India Assurance Co. Ltd. v. Somwati, (2020) 9 SCC 644]

Cases ReportedSupreme Court Cases

Hindu Succession Act, 1956 — S. 6 [as substituted by the Hindu Succession (Amendment) Act, 2005 w.e.f. 9-9-2005] — Daughter’s right in coparcenary property under substituted S. 6 of the HS Act, 1956: Daughter born before date of enforcement of the 2005 Amendment Act, held, has same rights as daughter born on or after the amendment. Non-requirement of coparcener father to be alive on date of coming into force of the said amendment, explained. [Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1]

Constitution of India — Art. 136 — Maintainability of SLP: SLP against order dismissing review on merits, when original order is not challenged, not maintainable. Law summarized on the matter. [T.K. David v. Kuruppampady Service Cooperative Bank Ltd., (2020) 9 SCC 92]

Criminal Procedure Code, 1973 — S. 167(2) and S. 437 — Default bail/statutory bail under S. 167(2): Indefeasible right to default bail/statutory bail under S. 167(2), once statutory period expires, discussed. Condition(s) if may be imposed as: (A) precondition(s) to release on default bail, and (B) conditions post release on default bail for cooperation in investigation, reporting to police station, etc., explained. This contrasted with position obtaining in regard to regular bail under S. 437. [Saravanan v. State, (2020) 9 SCC 101]

Constitution of India — Arts. 226 and 227 — Judicial Review — Exercise of Power — Limitations thereon: High Court purporting to take over role and function of Expert Committee, not permissible. When Government accepted decision of Expert Committee and no arbitrariness or settled vitiating ground was established thereagainst, held, High Court cannot venture to sit as an expert over and above Expert Committee, in absence of any arbitrariness or any other settled ground of interference in exercise of power of judicial review. [State of Kerala v. RDS Project Ltd., (2020) 9 SCC 108]

Stamp Act, 1899 — Ss. 40(1)(b) and 3 — Deficient stamp duty and penalty — Person who can be compelled to pay: Next purchaser or subsequent transferee of the property is liable to pay pending stamp duty and penalty. Furthermore, the same cannot be deposited through postdated cheque. [MSD Real Estate LLP v. Collector of Stamps, (2020) 9 SCC 113]

Supreme Court Rules, 2013 — Or. XLVII R. 1: Opening expression “Court may review its judgment or order” confers unfettered power on Court to entertain review petitions arising from judgments or orders passed in writ petitions filed under Art. 32 of the Constitution. Comma used after this expression has to be read disjunctively as separating it from remaining contents of R. 1, which provide exceptions in respect of civil or criminal proceedings. [Kantaru Rajeevaru (Right To Religion, In Re-9 J.) (2) v. Indian Young Lawyers Assn., (2020) 9 SCC 121]

Arbitration and Conciliation Act, 1996 — Ss. 11 and 7: In case of two different arbitration clauses in two related agreements between the same parties, principles explained regarding determination of appropriate clause that will operate in the factual matrix. The same would depend on the nature of the dispute raised between the parties. To determine the same it would be necessary to examine the agreements and other documents on record which reveal the true nature of the dispute raised. [Balasore Alloys Ltd. v. Medima LLC, (2020) 9 SCC 136]

Consumer Protection — Consumer/Consumer Dispute/Locus Standi — Class Action/Representative Complaints/Consumer Association: S. 12(1)(c) of the CP Act applies to a situation where there are numerous consumers having same interest in the matter. In that case, a complaint may be filed in a representative capacity by one or more consumers, with the permission of District Forum, on behalf of or for benefit of all the consumers so interested. The test under S. 12(1)(c) is of the sameness of interest. Procedural requirements under Or. 1 R. 8 CPC are attracted in such case by virtue of provisions of S. 13(6) of the CP Act. [Vikrant Singh Malik v. Supertech Ltd., (2020) 9 SCC 145]

Criminal Procedure Code, 1973 — Ss. 207(v) & (iii) r/w provisos I and II & Ss. 173(5) and (6) — Supply to the accused of copy of police report and documents appended thereto: Magistrate can withhold only such document referred to in Cl. (v) of S. 207 which in his opinion is “voluminous”, and not for any other reason. In case of such voluminous document, however, accused can be permitted to take inspection of document concerned either personally or through his pleader in court. Thus, even if investigating officer appends his note in respect of any particular document regarding its exclusion from copies to be granted to accused, that will be of no avail as his power is limited to do so only in respect of statements referred to in S. 173(6) CrPC. [P. Gopalkrishnan v. State of Kerala, (2020) 9 SCC 161]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 35 and 54 and Ss. 8(c)/20(b)(ii)(C) — Search and seizure: In this case there was recovery of contraband (ganja) from a house and conviction of accused under Ss. 8(c)/20(b)(ii)(C), was based on mere presumption of ownership of aforesaid house, without any finding of conscious possession of house with accused, so as to attribute presumption under NDPS Act against him with regard to recovery of contraband. As the guilt of accused was not established beyond reasonable doubt, conviction was reversed. [Gangadhar v. State of M.P., (2020) 9 SCC 202]

Service Law — Promotion — Upgradation of Post/Cadre — Promotion or Upgradation: In this case there was deployment of Telephone Operators as Radio Operators with higher pay scale. While determining that whether it was promotion or upgradation and consequent entitlement/non-entitlement to ACP Scheme, it was held that sometimes there is fine distinction between promotion and upgradation requiring holistic view to be taken considering factual matrix of each case. [Rama Nand v. State (NCT of Delhi),(2020) 9 SCC 208]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Ss. 2(1)(c) and (d): “Bank”/“Banking company” under SARFAESI Act, held, includes all cooperative banks, whether registered under State legislation or otherwise. [Pandurang Ganpati Chaugule v. Vishwasrao Patil Murgud Sahakari Bank Ltd., (2020) 9 SCC 215]

Cases ReportedSupreme Court Cases

Army Act, 1950 — Ss. 69 and 70: In this case there was conviction of appellant under S. 354 IPC for using criminal force on two women with intent to outrage their modesty by inappropriately touching their private parts during checkup. PW 13 Physician stated that touching of private parts and squeezing their nipples during examination was unnecessary. There was no motive for falsely implicating appellant. Hence held, conviction of appellant under S. 354 IPC was justified. [Union of India v. S.S. Bedi, (2020) 8 SCC 700]

Constitution of India — Art. 19(1)(g) and Arts. 29 & 30 r/w Arts. 25, 26 and 14, 47 and 51-A(j) — Admission to medical and dental courses (graduate and postgraduate): Validity of NEET, reaffirmed. Taking over of admission process by Government and statutory amendments prescribing transparent, merit-based common entrance test for eligibility and centralized admission process for all medical and dental colleges in India without any exception i.e. NEET, held, valid. The same are in the national interest, in the welfare of students and teachers, do not put the minority institutions to a disadvantage compared to other institutions and do not violate Arts. 14, 19(1)(g) and Arts. 29 & 30 r/w Arts. 25 and 26. [Christian Medical College Vellore Assn. v. Union of India, (2020) 8 SCC 705]

Constitution of India — Arts. 21, 39 and 41: Directions and observations passed regarding rights of elderly persons/senior citizens and their enforcement during COVID-19 Pandemic. [Ashwani Kumar v. Union of India, (2020) 8 SCC 808]

Constitution of India — Arts. 72 and 161 — Powers of commutation and remission of sentences exercisable by President and Governor under: Difference between such constitutional powers under Arts. 72 and 161 on the one hand, and similar powers under CrPC or other statutes on the other available to the appropriate executive Government, explained. Principles summarised regarding scope of judicial review of order of President or Governor under Art. 72 or Art. 161. Principles under S. 433-A CrPC are not applicable to exercise of constitutional power either under Art. 72 or under Art. 161. [Pyare Lal v. State of Haryana, (2020) 8 SCC 680]

Criminal Procedure Code, 1973 — Ss. 439 and 389: Principles summarized regarding distinction between Ss. 439 and 389. [Preet Pal Singh v. State of U.P., (2020) 8 SCC 645]

Insolvency and Bankruptcy Code, 2016 — S. 12(3) [as amended by S. 4 of the Insolvency and Bankruptcy Code (Amendment) Act, 2019], providing inter alia for mandatory completion of corporate insolvency resolution process (CIRP) within a period of 330 days: The general rule is that of an outer limit of 330 days. However, held, extension of time can be granted in exceptional cases. Exceptional cases would be cases where only a short period is left for completion of the insolvency resolution process beyond 330 days, and it would be in the interest of all stakeholders that the corporate debtor be put back on its feet and where the delay or a large part thereof is attributable to the tardy process of the Adjudicating Authority/Appellate Tribunal itself. Further, where the grace period of 90 days from the date of commencement of the Amending Act of 2019 is exceeded, there again a discretion can be exercised by the Adjudicating Authority and/or Appellate Tribunal to further extend time. The validity of amended S. 12(3), affirmed in its entirety except that the word “mandatorily” struck down, as being an excessive, arbitrary and unreasonable restriction being violative of Arts. 14 and 19(1)(g) of the Constitution. [Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531]

Penal Code, 1860 — Ss. 366-A and 506: In this case of alleged procuration of minor girl and criminal intimidation, conviction of accused under Ss. 366-A and 506 was upheld by High Court. However, guilt of accused, was not proved beyond reasonable doubt. Hence, conviction was reversed. [Parminder Kaur v. State of Punjab, (2020) 8 SCC 811]

Prevention of Food Adulteration Act, 1954 — Ss. 2(i-a)(f), 16(1-A) and 16(1)(a)(ii): In this case, the accused was alleged to be selling adulterated haldi powder without licence. Acquittal of accused was reversed by High Court, convicting him under Ss. 2(i-a)(f), 16(1-A) and 16(1)(a)(ii). As benefit of doubt in favour of accused, was made out. Hence, acquittal of accused was restored. [Prem Chand v. State of Haryana, (2020) 8 SCC 677]

Service Law — CCS (Recognition of Service Association) Rules, 1993 — Rr. 3, 5(c) & (d) and 10 — Service association — Object of: The primary object of forming service association is to promote common service interest of its members and membership is restricted to government servants having common interest. Further held, for according recognition to service association it must represent minimum 35% of total category of employees with a rider that where there is only one association with more than 35% membership, another association with second-highest membership must be recognised if it commands at least 15% membership. Thus, intention is to avoid plurality of associations which may not be in overall interest of government servants in forming service association. [Union of India v. ISRO Drivers Assn., (2020) 8 SCC 657]

Service Law — Promotion — Criteria/Eligibility: In this case, claim for promotion to post of Junior Bailiff undisputed by Office Assistants (19 in no.) and Record Clerks (3 in no.) on basis of High Court order dt. 22-7-2009 and fact that vacancies in respect of which claim was laid arose before issuance of 2016 Act and hence, requirement of passing SSLC could not be insisted upon as eligibility for promotion, not sustainable. [R. Palanisamy v. High Court of Madras, (2020) 8 SCC 670]

Cases ReportedSupreme Court Cases

Insolvency and Bankruptcy Code, 2016 — S. 43 — Preferential nature of transactions — Determination/Identification of: Satisfaction of three fold requirements i.e. (I) Twin requirements of S. 43(2); (II) “Relevant time” requirement of S. 43(4); and (III) Non-satisfaction of/being outside the ambit of exclusions carved out in S. 43(3), is necessary for “preferential transaction” to be considered as offending and thereby subject to consequences provided therefore. Intention to enter into preferential transaction is irrelevant in view of deeming provision. Exclusion from the purview of preferential transaction is not permissible where transferee alone is acting in the ordinary course of its business or financial affairs. Jaypee Infratech Ltd. [Interim Resolution Professional v. Axis Bank Ltd., (2020) 8 SCC 401]

Mines and Minerals — Illegal mining: Directions and conditions for condonation of delay in payment of compensation and interest as per directions in (2017) 9 SCC 499, resumption of mining and sale of undisposed stock, issued. [Common Cause v. Union Of India, (2020) 8 SCC 399]

Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 — S. 24(2) — Deemed lapse of 1894 Act acquisition proceedings under — When occasioned — Law clarified: Deemed lapse of proceedings initiated under 1894 Act is occasioned where award under S. 11 of the 1894 Act has been made five years or more prior to date of commencement of the 2013 Act, and the two conditions specified in S. 24(2) are cumulatively satisfied i.e. (A) possession of the acquired land has not been taken, and (B) compensation has not been paid. Even if one of these two conditions is not satisfied, the 1894 Act acquisition proceedings shall not lapse. Word “or” used in S. 24(2) between the abovesaid two conditions in S. 24(2) has to be read as “nor” or as “and”. This is because where two negative conditions or two prohibitions are coupled by the word “or”, the said “or” has to be read as “and” or “nor”. If possession taken, but compensation not paid then there would be no lapse. If compensation paid, but possession not taken then also there would be no lapse. [Indore Development Authority (Lapse 5J) v. Manoharlal, (2020) 8 SCC 129]

Cases ReportedSupreme Court Cases

Procedural and Evidentiary liberties under S. 34 of the Arbitration Act: An application under Section 34 is meant only for examining the legality and/or enforceability of an award. But award-debtors, having lost in the arbitration, started treating the Section 34 application like an original suit. However, since the last few years the liberty and laxity with which the applicants had started approaching the matter of challenge under Section 34 has been severely restricted and curtailed by the Supreme Court. Supreme Court tightens screws on procedural and Evidentiary liberties under section 34 of the Arbitration Act by [Sunil Gupta and Manavendra Gupta, (2020) 8 SCC (J-1)]

Role Of The High Courts Post The Constitution: The purpose of this article is to state that the Supreme Court is not alone in its duty as a sentinel on the qui vive but is ably supported and assisted by the High Courts — as constitutional co-equals and how a recent judgment of the Supreme Court has inadvertently restricted the power of the High Courts. High Courts — Co-Sentinels On the Qui Vive by [V. Lakshminarayanan, (2020) 8 SCC (J-8)]

Arbitrability of Fraud: The issue discussed under this article is the arbitrability of fraud: i.e. should serious cases of fraud be referred to arbitration? In this Article, the decisions of Indian courts (various High Courts and the Supreme Court) rendered under three statutes that have governed arbitration in India since the 19th century are being discussed. Then an exercise has been undertaken in comparative international law with English and American jurisprudence on the subject, with the objective of arriving at a sustainable solution for Indian law. The Arbitrability of Fraud in Indian Law by [Aditya Shiralkar, (2020) 8 SCC (J-23)]

Constitution of India — Arts. 341, 342, 342-A, 338, 338-A & 366(24), (25) & (26-C) and Arts. 14, 15, 16 and Pt. XVI — Sub-division/Subclassification of Scheduled Castes/Scheduled Tribes: Issue regarding permissibility of preferential treatment to some castes/tribes contained in List of Scheduled Castes or Scheduled Tribes under Arts. 341/342, without denying the benefit in question to remaining such castes/tribes, directed to be referred to larger Bench of seven Judges or more. [State of Punjab v. Davinder Singh, (2020) 8 SCC 1]

Service Law — Recruitment Process — Invalid/Wrong/Illegal/Irregular selection: Persons affected by judgment setting aside invalid/wrong/illegal/irregular selection who were not parties either before High Court or Supreme Court, are bound thereby. [Ajoy Debbarma v. State of Tripura, (2020) 8 SCC 67]

Companies Act, 2013 — Ss. 241, 242 and 244 r/w S. 72 — Oppression and mismanagement: Jurisdiction of NCLT in respect of oppression and mismanagement, held, does not extend to determination of disputes as to succession or ownership of shares, proper forum for which is civil court. Jurisdiction under Ss. 241 to 244 must be exercised strictly in terms of provisions of 2013 Act. [Aruna Oswal v. Pankaj Oswal, (2020) 8 SCC 79]

Service Law — Reservation/Concession/Exemption/Relaxation and Affirmative Action — Reservation: In this case, 1% reservation was granted for Hindu Nadar community belonging to OBC provided vide Gazette Noti. dt. 3-8-2010 with retrospective effect from 21-11-2009 and Kerala State and Subordinate Services Rules, 1958. The 1958 Rules were accordingly amended and there was shortfall in reservation. The Supreme Court held that posts falling vacant after amendment of the 1958 Rules are required to be filled up in accordance with amended Rules. Rank list is merit list having validity period of three years and is source of making appointment as and when vacancy arises. Vacancies must be determined in terms of applicable Rules. [Aswathy R.S. Karthika v. Archana M., (2020) 8 SCC 98]

Service Law — Pension — Qualifying period/service: Entitlement to reckoning of service rendered as CLR (casual labour roll) prior to recruitment against regular post, for purposes of computation of pension, to be determined in accordance with applicable Rules. But, benefits should not be unreasonably denied to employees, more so on technicalities since basis of grant of pension is to provide succour to retired government employee. [V. Sukumaran v. State of Kerala, (2020) 8 SCC 106]

Criminal Procedure Code, 1973 — Ss. 389 and 374 — Suspension of sentence pending appeal and release of convict on bail: In this case, there was conviction of appellant-husband under Ss. 304-B and 498-A IPC with sentence of life imprisonment under S. 304-B and period of 3 yrs under S. 498-A IPC. Considering submissions of accused and other material placed on record, and taking into account, that accused was in jail for more than 3½ yrs, sentence imposed on him stood suspended, and he was enlarged on conditional bail, pending appeal before High Court. [M. Radha Hari Seshu v. State of Telangana, (2020) 8 SCC 114]

Constitution of India — Art. 21: Directions issued regarding criminal cases against foreigners for violating visa norms and COVID-19 Guidelines. [Maulana Ala Hadrami v. Union of India, (2020) 8 SCC 118]

Prevention of Food Adulteration Rules, 1955 — R. 32 — Requirements of label on package of food as prescribed under — Whether complied with: When the bar code on package is having relevant information regarding lot/code/batch identification, which can be decoded by bar code scanner, it is sufficient compliance with R. 32(e). [Raghav Gupta v. State (NCT of Delhi), (2020) 8 SCC 120]

Penal Code, 1860 — Ss. 323/149 and 325/149 and Ss. 147, 323 & 325: In this case considering factors like young age of accused at incident time, incident taking place all of a sudden for plucking a fruit, severity of injuries suffered by injured persons, and period of sentence already undergone by accused, substantive sentence reduced and fine/compensation enhanced. [Karthick v. State, (2020) 8 SCC 122]

Cases ReportedSupreme Court Cases

Muslim Women (Protection of Rights on Divorce) Act, 1986 — Ss. 3, 4, 5 and 7 — Claim of maintenance by divorced woman under S. 3 — Proper forum — Family Court or Magistrate’s Court: Though Supreme Court has upheld validity of 1986 Act, there is no authoritative pronouncement as to whether Family Court would have jurisdiction to entertain an application filed by a divorced Muslim woman for maintenance under the provisions of the Muslim Women’s Protection Act. Issue regarding legality of Family Court converting an application under S. 125 CrPC into an application under S. 3 of the 1986 Act, referred to larger Bench in view of disagreement at the Bench. [Rana Nahid v. Sahidul Haq Chisti, (2020) 7 SCC 657]

Constitution of India — Arts. 32, 14, 15, 16, 21-A, 38, 39, 46 and 51-A: Policy matters regarding primary education and matters which fall within the domain of experts, hence, interference by court is not warranted. [Ashwini Kumar Upadhyay v. Union of India, (2020) 7 SCC 693]

Criminal Procedure Code, 1973 — S. 197 — Object of sanction for prosecution under — Circumstances in which sanction is necessary — Test to decide: Principles summarised regarding law relating to requirement of sanction to entertain and/or take cognizance of offence allegedly committed by police officer, under S. 197 CrPC and S. 170 of the Karnataka Police Act, 1963. [D. Devaraja v. Owais Sabeer Hussain, (2020) 7 SCC 695]

Penal Code, 1860 — Ss. 302, 364, 365, 387, 347, 201, 109 and 120-B — Abduction and illegal confinement of victim — Followed by his murder — Presumption of murder against those who abducted or illegally confined the victim: Abduction followed by murder in appropriate cases can enable court to presume that abductor is the murderer. Principle in this regard is that after abduction, the abductor would be in a position to explain what happened to his victim and if he failed to do so, it is only natural and logical that an irresistible inference may be drawn that he has done away with the hapless victim. S. 106 of the Evidence Act would come to assistance of prosecution in such matter. Said principle would also apply to those persons who illegally confine the person who stands abducted even if there is no evidence that they have themselves carried out the abduction. However, further held, this is not an inexorable rule, but to be applied based on factual matrix presented before the court. [Somasundaram v. State, (2020) 7 SCC 722]

Constitution of India — Art. 32 — Maintainability — Defective petitions and delay in removing defects by petitioner: In this case, there were baseless and reckless allegations against Registry of Court about delayed listing, charging excess fees, etc., tagging cases with other cases without authorisation of Court and favouritism towards influential lawyers/petitioners. There being no merit in allegations, writ petition was dismissed with costs of Rs 100 on the petitioner advocate as a token to remind him of his responsibility towards the noble profession and that he ought not to have preferred such a petition. [Reepak Kansal v. Supreme Court of India, (2020) 7 SCC 805]

Cases ReportedSupreme Court Cases

Arbitration Act, 1940 — Ss. 30 and 39 — Grounds for setting aside award: In this case, there was no allegation of misconduct and the District Judge not held justified in setting aside the award, As the dispute was related to partition of family properties, on facts, award was modified to the extent of agreement between parties. [Balwant Singh v. Dungar Singh, (2020) 7 SCC 647]

Armed Forces — Gender Equality/Equality of Opportunities — Claim for Permanent Commissions (PCs) by women officers engaged in Short Service Commissions (SSCs) — Entitlement to: In terms of S. 12 of the Army Act, 1950, eligibility of women for engagement or enrolment in regular Army is subject to provision being made by Central Government. The Policy dt. 25-2-2019 granting SSC women officers entitlement to PCs in eight Arms/Services in addition to existing streams of JAG & AEC, all of which belonged to the two broad categories of services in the Army of (i) Combat Support Arms and (ii) Services (not including the third category of Combat Arms), recognises right of women officers to equality of opportunity and must be construed as a decision which enforces fundamental rights of women to seek access to public appointment and equality of opportunity in matters of engagement in Armed Forces. Further held, fact that it was intended to apply prospectively does not mean that it would apply only to women officers who have been appointed as SSC officers after the date of the policy decision. [Ministry of Defence v. Babita Puniya, (2020) 7 SCC 469]

Constitution of India — Art. 21 — Right to life — Air pollution in NCT of Delhi: Stubble burning by farmers in States of Punjab, Haryana and U.P. is the main reason for air pollution in NCT of Delhi whereas construction and demolition, open dumping of waste/garbage, burning of garbage, unpaved road/pit, road dust, garbage burning and traffic congestion in NCT of Delhi are other reasons of pollution. State Governments and officials are obliged to pay compensation for tortious liability. Directions also issued in regard to other polluting factors. [M.C. Mehta (Stubble Burning & Air Quality) v. Union of India, (2020) 7 SCC 573]

Constitution of India — Art. 21 — Right to life: Regarding the issue of air pollution in Delhi and NCR, one of the major causes being crop stubble burning in the States surrounding NCR, including many other causes, having regard to reports/recommendations of various committees, affidavits filed by Governments concerned, directions issued by Supreme Court. [M.C. Mehta (Stubble Burning & Air Quality) v. Union of India, (2020) 7 SCC 530]

 Constitution of India — Arts. 21, 41, 47, 48, 48-A, 51-A(g) & (h) — Right to life — Air pollution in Delhi — Suo motu notice also taken of water pollution in Delhi and other places: There was no improvement in quality of air and water despite several orders of Supreme Court and tortious liability lies on Governments and their administrative machineries as insufficient steps were taken by Government for stopping stubble burning by farmers, garbage/waste cleaning and/or disposal, smog dispensing as per Supreme Court’s orders. Governments of Punjab, Haryana and U.P. and Government of NCT of Delhi and their administrative machinery from top to bottom must show cause why they should not be asked to compensate citizens of Delhi and adjoining areas for various diseases which are being caused and sufferings faced. [M.C. Mehta (Stubble Burning & Air Quality) v. Union of India, (2020) 7 SCC 592]

Environment Law — Air Pollution — Measures to prevent air pollution — Air pollution in Delhi and NCR: Authorities concerned must discharge their duties by working in tandem in view of doctrine of public trust and take drastic steps to curb pollution in Delhi. [M.C. Mehta (Stubble Burning & Air Quality) v. Union of India, (2020) 7 SCC 589]

Environment Law — Air Pollution — Stubble and Garbage burning — Right to life: Air pollution rose due to stubble burning by farmers in Punjab, Haryana and U.P. and NCT of Delhi. Such activity directed to be stopped. Relief and assistance granted to small and marginal farmers. [M.C. Mehta (Stubble Burning & Air Quality) v. Union of India, (2020) 7 SCC 581]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Visitation Rights: In this case, there was absolutely no resolution between hostile parents, despite repeated efforts by High Court and Supreme Court, including mediation, to bring parties to amicable resolution of the issues of custody and visitation rights. Interim order of Supreme Court deciding visitation rights directed to be continued. Parties granted liberty to approach competent court for adjudication of custody matter. [Soumitra Kumar Nahar v. Parul Nahar, (2020) 7 SCC 599]

Income Tax Act, 1961 — Ss. 260-A and 176 — Appeals — Discontinuation of assessee units or striking off of companies by Registrar of Companies — Effect of, on appeals: Such closure would not render appeals infructuous. The issue raised was still required to be considered as per proviso (a) of S. 560(5) of the Companies Act, 1956 [corresponding to S. 248(7) of the Companies Act, 2013] and under Cl. (L) of Ch. XV of the Income Tax Act. [CIT v. Gopal Shri Scrips (P) Ltd., (2020) 7 SCC 654]

Penal Code, 1860 — S. 302 r/w S. 34 — Murder — Circumstantial evidence — Recovery of dead body and the weapon of offence: In this case, dead body and the gun used in the offence was allegedly recovered at the pointing out by accused S and R. There was allegedly a land dispute between deceased and accused S and the entire prosecution case was based upon telephone call made by S, but no call details have been produced to verify the correctness of telephone call. There were major contradictions between statement of PWs regarding recovery of dead body. The place of recovery of dead body was known to police, before the statements of accused were recorded. It was held that the accused cannot be convicted only on the basis of recovery of gun used in the commission of crime. In absence of any evidence led by prosecution as to who fired the fatal shot, benefit of doubt must go to accused persons. As per the statement of daughter of deceased (PW 1), the motive was land dispute with S.  If such was a motive, then there is no reason for her to contact accused S, to find out whereabouts of her father. The order of acquittal could be interfered with only if there was perversity in the findings recorded by trial court. The mere fact that High Court has a different opinion will not be sufficient to enable High Court to set aside order of acquittal. Hence, acquittal was restored. [Satish Kumar v. State of H.P., (2020) 7 SCC 637]

Penal Code, 1860 — Ss. 304 Pt. I/149 and 148 or Ss. 304 Pt. II/149 and 148 — Culpable homicide not amounting to murder: In this case, accused persons were found harbouring common object to assault, resulting in death of one. Such fact emerged from various factors, including that they assembled with weapons of assault and their participated in acts of assault. Such weapons were capable of causing death. The evidence of prosecution witnesses was found uniform to the effect, that all accused had participated in acts of assault of one and subsequently other members of his family. Therefore, it was held by the Supreme Court that the High Court was right in reversing acquittal of accused persons by trial court, thereby convicting them. However, from manner in which assault took place, no intention is attributable to accused persons to cause death of one. Therefore, in given facts, conviction of accused persons was modified from Ss. 304 Pt. I/149 to Ss. 304 Pt. II/149 IPC. Their sentence, was accordingly, modified. [Dilip Shaw v. State of W.B., (2020) 7 SCC 626]

Precedents — Reference to Larger Bench: Reference to Bench of more than three Judges of High Court by two-Judge Bench (Division Bench) of High Court, held, not permissible. The principle for reference to larger Benches applicable to High Courts is the same as applicable to the Supreme Court. Thus, if two-Judge Bench of High Court considers that a Full Bench judgment by three-Judges requires re-consideration, the same must first be placed before a three-Judge Full Bench of the High Court, which alone may refer the matter to yet a larger Bench if found by it to be so warranted. Two- Judge Bench of High Court cannot refer the matter directly to a Bench of more than three-Judges. [Warad Murti Mishra v. State of M.P., (2020) 7 SCC 509]

Service Law — Appointment — Compassionate appointment — Norms/Rules/ Regulations applicable — Relevant date: Under R. 5 proviso (as amended w.e.f. 1-4-1999) and R. 9(3) (as amended w.e.f. 28-5-2000) of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, minor dependant of deceased employee had to apply within one year of date of death of deceased employee and should have attained age of 18 yrs on day of making application, while under unamended provision minor dependant was entitled to apply till one year of attaining majority. The Supreme Court held that norms prevailing on date of consideration of application would be basis for considering claim for compassionate appointment. [N.C. Santhosh v. State of Karnataka, (2020) 7 SCC 617]

Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — Or. 7 R. 11(a) — Object — Exercise of power under — Nature of enquiry to be made by court: To exercise power under this rule Court has to determine whether plaint prima facie discloses cause of action. To ascertain this, court has to read averments in conjunction with documents relied upon in plaint as a whole, without addition or subtraction of any words. It is substance and not form which has to be seen. So read, if cause of action prima facie disclosed, court is not required to further enquire about truthfulness of allegations on fact. The pleas taken by defendant in written statement are also not relevant at this stage. If however, court finds suit to be manifestly vexatious, not disclosing any right to sue, it would be justified in exercising power under R. 11(a). [Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366

Constitution of India — Art. 233 — Appointment of District Judges: Members of subordinate judicial service, held, are ineligible for being considered for appointment from direct recruitment quota for advocates and pleaders. Rules of various High Courts precluding members of judicial service from staking their claim as against posts reserved for direct recruitment from the Bar, held, not ultra vires. [Dheeraj Mor v. High Court of Delhi, (2020) 7 SCC 401]

Constitution of India — Arts. 21 and 14: For credible recording of evidence and safeguarding human rights inside police stations, directions issued for iimplementation of action plan prepared by the Committee of Union of India-Ministry of Home Affairs (MHA) and as directed in Shafhi Mohd., (2018) 5 SCC 311. [Paramvir Singh Saini v. Baljit Singh, (2020) 7 SCC 397]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — COVID-19 Pandemic: While taking suo motu cognizance of miseries of migrant labours, certain deficiencies were noticed in registration and transportation of migrant labours, hence, interim directions issued. [Problems & Miseries of Migrant Labourers, In re., (2020) 7 SCC 226]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — COVID-19 Pandemic Lockdown — Academic Year 2019-2020: Due to failure of conducting examinations/incomplete examinations for Classes X and XII of the Central Board of Secondary Education (CBSE) and the Indian Certificate of Secondary Education (ICSE), assessment methodology based on past performance suggested by CBSE, accepted. Students of Class XII can also opt for optional examination as per suggestion of CBSE. ICSE also would be notifying similar assessment method with addition of optional examination for Class X also. [Amit Bathla v. CBSE, (2020) 7 SCC 233]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — COVID-19 Pandemic: Stay on Ratha Yatra Puri, vacated and proposal of Gajapati Maharaj of Puri, who is the Chairman of the Puri Jagannath Temple Administration to conduct Rath Yatra, accepted subject to conditions. [Odisha Vikash Parishad v. Union of India, (2020) 7 SCC 264]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — COVID-19 Pandemic — Return of migrant labourers to their own State: In a non-adversarial litigation, State cannot claim that unless the State is informed of the materials, it cannot reply or act. State directed to file information and details regarding migrant workers waiting to return to their home State. Judicial notice taken of IA in suo motu writ petition, where details with regard to the State of Maharashtra, migrants who are still awaiting to return and other difficulties faced in the State of Maharashtra have been narrated. [Problems & Miseries Of Migrant Labourers, In re, (2020) 7 SCC 399]

Income Tax — Taxation in India — Agreement for avoidance of double taxation of income and the prevention of fiscal evasion with the Republic of Korea (“DTAA”) — Arts. 5(1), 5(4), 7(1) and 7(2) r/w S. 90 of the Income Tax Act, 1961: When it comes to “fixed place” permanent establishments under double taxation avoidance treaties, the condition precedent for applicability of Art. 5(1) of the DTAA and the ascertainment of a “permanent establishment” is that it should be an establishment “through which the business of an enterprise” is wholly or partly carried on. Further, the profits of the foreign enterprise are taxable only where the said enterprise carries on its core business through a permanent establishment and the maintenance of a fixed place of business which is of a preparatory or auxiliary character in the trade or business of the enterprise would not be considered to be a permanent establishment under Art. 5 of the DTAA. [CIT v. Samsung Heavy Industries Co. Ltd., (2020) 7 SCC 347]

Motor Vehicles Act, 1988 — S. 163-A — No-fault liability under — Scope of: As per S. 163-A it is “use of motor vehicle” as cause of accident alone which needs to be established, without any requirement to prove fault on part of driver, whether it be the owner or any other person. [Chandrakanta Tiwari v. New India Assurance Co. Ltd., (2020) 7 SCC 386]

Motor Vehicles Act, 1988 — Ss. 166 and 163-A and Sch. II: In case of death of non-earning housewife/mother in motor accident, while estimating notional income or pecuniary estimate of contribution of housewife, future prospects in respect of such notional income of housewife is to be added. [Rajendra Singh v. National Insurance Co. Ltd., (2020) 7 SCC 256]

Penal Code, 1860 — Ss. 307/114: In this case, there was attempt to murder victim by shooting, causing grievous injury to him. Accused persons aided and abetted each other in crime (A-1 fired bullet in question while riding pillion on motorcycle driven by A-2, appellant herein). The conviction of appellant-accused under Ss. 307/114 along with the co-accused, and enhancement of sentence by High Court under S. 307, confirmed. [Mustak v. State of Gujarat, (2020) 7 SCC 237]

Penal Code, 1860 — Ss. 394 and 84 — Voluntarily causing hurt in committing robbery: In this case, victim-complainant was assaulted by accused persons armed with knife and revolver, and money (Rs 30,000) robbed from him. There was involvement of appellant-accused with two others. One co-accused, was acquitted as the version of complainant qua him was found doubtful. Conviction of appellant under S. 394 IPC and S. 25 of the Arms Act, confirmed by High Court, but sentence reduced to two years’ RI. It was held to be sustainable as his involvement was clearly established and he could establish neither his plea of juvenility nor of unsoundness of mind at the time. [Mohd. Anwar v. State (NCT of Delhi), (2020) 7 SCC 391]

Practice and Procedure — State as a Litigant/Party — Delay by State — Condonation of — If warranted — Sufficient cause: In this case, there was delay of 1697 days in filing SLP and only explanation was that there was public interest involved and pendency of certain other matters. It was held, if there is public interest involved then Government was grossly negligent in looking after public interest and condonationof delay was declined. Pecuniary loss, if any, directed to be recovered from persons responsible for causing loss to Government. [State of W.B. v. Soroj Kumar Mondal, (2020) 7 SCC 263]

Rent Control and Eviction — Allotment/Deemed Vacancy/Vacancy/Release of Building — Vacancy order — Challenge to — Maintainability: Preliminary order of Rent Controller and Eviction Officer notifying premises as vacant can independently be challenged by way of writ petition before High Court, or in revision after final order allotment/release, alongwith the final order. [Mohd. Inam v. Sanjay Kumar Singhal, (2020) 7 SCC 327]

Service Law — Police — Recruitment Process — Rank List — Period of operation of: In this case, for the post of SI of Police (Trainee), first Ranked List (RL-I) was dt. 11-9-2013. Advice (appointment) against 93 Non-Joining Duty (“NJD”) vacancies reported on 12-7-2016 from RL-I was held impermissible, as said Ranked List had expired by then. [Aneesh Kumar V.S. v. State of Kerala, (2020) 7 SCC 301]

Specific Relief Act, 1963 — Ss. 34, 35, 38, 39 and 41 — Declaratory relief with suit for injunction simpliciter — When necessary: Where bare injunction suit has been filed to restrain State Authorities from acting in a particular manner without seeking declaratory relief as to illegality of orders/actions of State Authorities based on which State Authorities were seeking to act, said bare injunction suit was not maintainable, as no government order can be ignored altogether unless a finding is recorded that it was illegal, void or not in consonance with law. [Nagar Parishad, Ratnagiri v. Gangaram Narayan Ambekar, (2020) 7 SCC 275]

Telecommunications Laws — Licence fees/AGR dues: As the public sector licensees does not have the same kind of licence agreement as private licensees nor provide identical services, Department of Telecom directed to reconsider the demand of more than Rs 4 lakh crores on public sector licensees assessed on basis of licence agreements of private licensees as per Assn. of Unified Telecom Service Providers of India, (2020) 3 SCC 525. [Mandar Deshpande, In re, (2020) 7 SCC 267]

Cases ReportedSupreme Court Cases

Andhra Pradesh Educational Institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983 (5 of 1983) — R. 4 — Unaided institutions — Fee revision — Statutory mandate — Mandatory compliance with: For revising fee, strict compliance with drill under R. 4 to be followed by Government, held, is mandatory. Thus, interim fee fixed by Government in this case, without following drill of R. 4, held, illegal but interim fee fixed by Single Judge of High Court by considering facts, balance of convenience and irreparable loss to petitioner institutions, affirmed. Single Judge’s order will continue to operate insofar as the period of 2019 onwards is concerned until a final fee is fixed in accordance with the requisite Act and Rules. [Rajeev Gandhi Memorial College of Engg. & Technology v. State of A.P., (2020) 7 SCC 157]

Arbitration and Conciliation Act, 1996 — Ss. 34(2-A) and 37 — Domestic arbitral award — Patent illegality — Ground of — When can be invoked: The ground of patent illegality is a ground available under the statute for setting aside a domestic award, if the decision of the arbitrator is found to be perverse, or, so irrational that no reasonable person would have arrived at the same; or, the construction of the contract is such that no fair or reasonable person would take [test therefor is the one laid down in para 42.3 of Associate Builders, (2015) 3 SCC 49, as affirmed in para 40 of Ssangyong Engg., (2019) 15 SCC 131]; or, that the view of the arbitrator is not even a possible view. [Patel Engg. Ltd. v. North Eastern Electric Power Corpn. Ltd., (2020) 7 SCC 167]

Civil Procedure Code, 1908 — S. 25: Relevant factors to consider petition for transfer of pending partition suit from Delhi High Court to Bombay High Court where application was filed by petitioners for letters of administration to estate of deceased owner, discussed. [Shamita Singha v. Rashmi Ahluwalia, (2020) 7 SCC 152]

Constitution of India — Arts. 21 and 32 — Cases under the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act): Detailed directions issued regarding speedy investigation and trial of cases under the Protection of Children from Sexual Offences Act, 2012, including for setting up of Special POCSO Courts and their functioning. [Alarming Rise in the number of Reported Child Rape Incidents, In re, (2020) 7 SCC 87]

Constitution of India — Arts. 21 and 32 — Cases under the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act) — Speedy investigation and trial — Shocking state of affairs: As almost two-thirds of the cases under POCSO pending trial for more than one year due to lack of awareness and dedication to meet deadlines and inadequacy of courts, directions issued regarding the matter. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 108]

Constitution of India — Arts. 21 and 32 — Cases under the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act): Further directions and clarifications issued regarding speedy investigation and trial and setting up of exclusive POCSO Courts. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 112]

Constitution of India — Arts. 21 and 32 — Cases under the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act): Further directions and clarifications issued regarding speedy investigation and trial and setting up of exclusive POCSO Courts. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 130]

Constitution of India — Arts. 21 and 32 — Cases under the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act): Further directions and clarifications issued regarding speedy investigation and trial and setting up of exclusive POCSO Courts. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 142]

Constitution of India — Arts. 21 and 32 — Establishment of Human Rights Courts and appointment of Special Public Prosecutors: In this case, as States of Odisha, Telangana, Meghalaya, Mizoram, Rajasthan, U.P. and Uttarakhand had not filed response even after one-and-a-half years, it was directed that said States should file affidavit within four weeks and pay costs of Rs 50,000. Costs of Rs 1 lakh imposed on State of Rajasthan as no one represented it. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 95]

Constitution of India — Arts. 21 and 32 — Unnao Child Rape case — Independent, impartial and speedy investigation — Court monitored investigation by CBI: In this case, direction were passed the previous day for transfer of case from Lucknow to Delhi, stayed for a limited period due to ongoing investigations and requirement of passing remand orders for arrested accused from time to time. CBI reminded that in said earlier order, CBI was directed to complete investigation within 15 days preferably within 7 days. [Alarming Rise in the number of Reported Child Rape Incidents, In re, (2020) 7 SCC 91]

Constitution of India — Arts. 21 and 32 — Unnao Child Rape case — Injured witness: In this case, directions issued regarding free treatment and shifting of witness from AIIMS to Dr Ram Manohar Lohia Hospital at Lucknow for further aftercare and treatment. The State of U.P. directed to arrange suitable ambulance for said transfer. It was clarified that injured witness should be provided proper treatment including physiotherapy free of cost. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 136]

Constitution of India — Arts. 21 and 32 — Unnao Child Rape case: In this case, due to critical condition of rape victim due to car accident and pneumonia, emergency directions with regard to treatment of rape victim and lawyer of rape victim by airlifting them to Delhi AIIMS, issued. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 93]

Constitution of India — Arts. 21 and 32 — Unnao Child Rape case: In this case, accused applied for transfer of case by alleging that observations of trial court reflected on merits of case. While disposing of the application, trial Judge directed to decide matter on merits without being influenced by its said observations. The Supreme Court held that observations of trial court that delay of 2 months and 10 days in reporting incident was reasonably explained by PWs 10, 8 and 9, did not reflect on merits of case. Trial Judge was cognizant about this and clarified that his observations did not reflect on merits of case. [Alarming Rise in the Number of Reported Child Rape Incidents, In re, (2020) 7 SCC 139]

Evidence Act, 1872 — S. 65-B(4) r/w Ss. 65-B(1) & 65-A and S. 22-A: Production of certificate under S. 65-B(4) is mandatory, but only in case of secondary evidence i.e. where primary evidence is not lead/original not produced. Oral admission e.g. by stepping into the witness box qua such document/electronic record cannot be considered as compliance with such mandatory requirement of production of the S. 65-B(4) certificate. [Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics — Spread of Coronavirus (COVID-19): In the light of precarious plight of Coronavirus patients and deplorable way of handling dead bodies, multiple sets of directions concerning different aspects of treatment of COVID-19 patients, issued. [Proper Treatment of COVID-19 Patients & Dignified Handling of Dead Bodies in the Hospitals, In re, (2020) 7 SCC 145]

Human and Civil Rights — Humanitarian and Natural Disasters, Epidemics and Pandemics: In this case while taking suo motu cognizance of misery of migrant labourers during COVID-19 Lockdown, directions issued for reducing their misery. [Problems & Miseries of Migrant Labourers, In re, (2020) 7 SCC 181]

Motor Vehicles Act, 1988 — Ss. 166, 163-A and Sch. II — Permanent partial disability — Functional disability and loss of future earning — Estimation of extent of: In this case, victim appellant 45 yrs of age working as a painter suffered physical disability of left lower limb assessed at 75%, about 37.5% of whole body, also left lower limb shortened by 3 cm and could not stand independently or walk without aid of a walker or attendant, cannot sit cross legged, squat or use an Indian toilet, cannot climb up and down a staircase. It was held that the earning capacity of appellant as on date of accident stood completely negated and not reduced. Appellant rendered permanently incapable of working as a painter or do any manual work. Compensation for loss of future earning therefore had to be proper and just to enable him to live a life of dignity and not an elusive compensation. If 75% physical disability had rendered appellant permanently disabled from pursuing his normal vocation or any similar work, it is difficult to comprehend grant of compensation to him in ratio to disability to whole body. Compensation granted towards loss of future earning on account of disability at Rs 2,31,000 was held grossly inadequate. Appellant therefore was held entitled to compensation for loss of future earning based on his 75% permanent physical functional disability recalculated with salary of Rs 5500 with multiplier of 14 at Rs 6,93,000. On the whole, compensation awarded by High Court modified and recalculated for pain and sufferings Rs 1,00,000, medical expenses Rs 7350, attendent charges Rs 21,000, loss of earnings during treatment Rs 66,000, conveyance charges Rs 10,000, loss of future earnings for disability Rs 6,93,000, future medical expenses Rs 2,50,000, loss of amenities Rs 50,000. All coming to a total of Rs 11,97,350 along with interest @ 6% from date of petition till realization. [Anthony v. Karnataka SRTC, (2020) 7 SCC 161]

Sales Tax and VAT — Works Contract — Employer’s (person who had awarded the works contract) obligation to reimburse sales tax in terms of the contract: After the Forty-sixth Amendment to the Constitution, the works contract is divided into two parts by a legal fiction: one for sale of goods/ materials and other for supply of labour/services; and it is possible for the States to levy sales tax on the value of goods/materials involved in such works contract. Further, rejecting the contention that there is no sales tax on the “completed item of work” which is an immovable property and, therefore there could be no reimbursement, held the expression “completed item of work” in Cl. 45.2, signifies the intent that reimbursement would be permissible only after execution of a particular item of work has been completed and accomplished i.e. this expression is intended to contradistinguish the cases where any item of work remains incomplete and yet any claim for reimbursement of the sales tax levied is sought for. The expression “completed item of work” cannot be read to mean as if signifying the levy of sales tax itself on the completed item of work because such reading of this expression would be totally disjunct from the context and would be entirely detached from the real intent. Further, Circular dt. 7-11-2001, issued by the State Government, clarifying and directing nonreimbursement of the sales tax, held, to be an unwarranted attempt to wriggle out of the contractual obligations with perverse construction of the plain terms of the existing contracts and thus disapproved. [State of Orissa v. B. Engineers & Builders Ltd., (2020) 7 SCC 198]