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CPC , S. 100 – RSA -  High Court had the jurisdiction to decide the second appeal only on the substantial questions of law framed at the time of admitting the appeal 

(2018-2)PUNJAB LAW REPORTER 588 (S.C.)

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IPC

Injuries to accused, not explained.

Section 300 IPC Exception 4 – Undue advantage  

 

(2018)1 SCeJ 1068 

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Criminal trial  -  A theory of "accused last seen in the company of the deceased" 

S. 313 Cr PC

Decided 2/5/18

SUPREME COURT E@JOURNAL

Delivered on 9th May, 2018 / Reported on 9th May, 2018

Railways Act, 1989

1.  Compensation should be as per the rate on the date of application/incident or on the date of order ;

2.  Principle of strict liability 

3.  Whether presence of a body near the railway track is enough to maintain a claim.

4.                   Rate of interest.

(2018)2 SCeJ 1033

 

 

27th April, 2018

Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 50 - Provisions of Section 50 are mandatory and must be strictly complied with 

 Dod: 3.5.18

Transfer of Property  - A right in the property once extinguished by operation of law, it cannot be revived unless the law itself provides for its revival in a particular situation - A person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or .........

 

 

30.4.18

CPC - UPDATER


Specific Relief Act, Section 41(a), (b) -  Decree of anti-suit injunction - Anti-Suit Injunctions are meant to restrain a party to a suit/proceeding from instituting or prosecuting a case in another court, including a foreign court - Simply put, an anti-suit injunction is a judicial ...................



 

 Prevention of Food Adulteration Act, 1954

(2018)1 SCeJ 871

Supreme Court e Journal

24 April, 2018

 

Prevention of Food Adulteration Act, 1954, Section 7, Explanation - According to the accused, since the Ghee which was found to be adulterated was not itself meant for sale, but was meant to be used as an ingredient in the sweets that were in turn meant for sale, no offence is made out – It was pleaded that it was stored not for sale, but for a purpose other than that of sale i.e. for the purpose of preparation of sweets -  The contention in other words is that it was legal to store adulterated Ghee, if the Ghee itself was not meant for sale - Explanation to the section 7 does not support this contention -  It clearly lays down that if a person stores any adulterated food for the purpose of manufacturing from it any article of food for sale, he shall be deemed to store adulterated food - ..................

 



 

 

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(2018)1 SCeJ 613

DOD:19th March, 2018

Reported :19th March, 2018

 

FIR -  Two FIRs are filed in relation to the same offence and against the same accused, whether the subsequent FIR was liable to be quashed or not when filed by a different person




Limitation Act, Section 5 - Appeal before High court was delayed by 554 days........ Dod : 8.03.2018


(2018)1 SCeJ 550

 

9th March, 2018

 

Arbitration and Conciliation Act, 1996, Section 7  - CPC, 1908, Section 89 - Arbitration  - Reference To Arbitration -  When there was no arbitration agreement between the parties, without a joint memo or a joint application of the parties, on the oral consent of the counsel, the High Court ought not to have referred the parties to arbitration -......................


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(2018)1 SCeJ 550

 

9th March, 2018

 

(i) Decree - Mode of appropriation of payment – Interest – Principal  -  If there is a direction in the decree as to the mode of appropriation of payment, then appropriation of any payment made by the judgment-debtor has to be strictly in accordance with the direction contained in the decree - If there is no such direction in the decree, then the general principle is that where a judgment-debtor makes payment without making any indication as to how the payment is to be adjusted, it is the option of the creditor to make adjustment firstly towards the interest and then towards the principal ..........................


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SUPREME COURT E JOURNAL

(2018)1 SCeJ 543

Dod: 6.3.18 / Reported 7.3.18

Indian Penal Code, 1860,  Section 195(1)(b)(ii) - Forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, the same cannot be treated as one affecting administration of justice . CLICK FOR FULL REPORT

............

PLR Supreme Court e@journal



(2018)1 SCeJ 524

SUPREME COURT OF INDIA

23 February, 2018

PLR

SUPREME COURT E@JOURNAL

 

 

Industrial Dispute Act, 1947 , Section 17-B   - An order passed under Section 17-B of Act does not merge with the final order passed in the appeal and being an independent order, it remains alive for enforcement


 

 

(2018)1 SCeJ 492

DOD: 23 February, 2018

REPORTED ON 24 February, 2018 (within 48 hours) 

 PLR Supreme Court

e@journal

 

 

Criminal Procedure Code, 1973,  Sections 397 and 398 –..............


Service matter – Regularisation - Appellant has been working for more than two decades - Initial appointment of the appellant was not in accordance with law - Question of regularisation .................................................

(2018)1 SCeJ 498 :

SUPREME COURT e@journal

 

23 February, 2018.


(2018)1 SCeJ 477

 SUPREME COURT e@journal

DOD: 23 February, 2018.

Reported in SCe@J 23.2.2018

 

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Cr.P.C., Section 88 -  Does not confer any right on any person, who is present in a Court - Discretionary power given to the Court is for the purpose and object of ensuring appearance of such person in that Court or to any other Court into which the case may be transferred for trial –.................

 

(ii) Cr.P.C., Section 88 -  That the word used in Section 88 “any person” has to be given wide meaning, which may include persons, who are not even accused in a case and appeared as witnesses.   ...............  

 

(iii) Cr.P.C., Section 88 -   “that shows that the person must be a free agent whether to appear or not” - When accused was issued warrant of arrest to appear in the Court and proceeding under Sections 82 and 83 Cr.P.C. has been initiated,.................          

 

(iv) Words and Phrases  - Word ‘may’  - ................

(v) Bail - The discretion to grant bail has to be exercised judiciously and in a humane manner and compassionately as has been laid down by this Court in in Dataram Singh   v. State of Uttar Pradesh & Anr., (2018)1 SCeJ 234 - There cannot be any dispute to the proposition as laid down by this Court in Dataram Singh  (supra) with regard to grant or refusal of the bail, which are well settled.        

 


(2018)1 SCeJ 471

SUPREME COURT e@Journal

20.2.2018 reported 22.2.18

 

 

Right to Information Act, 2005  Sections 8, 9 and 11 - Direction to the Union Public Service Commission (UPSC) to disclose the details of marks (raw and scaled) awarded in the Civil Services (Prelims) Examination 2010 - Weighing the need for transparency ............................- Situation of exams of other academic bodies may stand on different footing - Furnishing raw marks will cause problems ..................

 

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REGULAR SECOND APPEAL

 (2018)1 SCeJ 463

SUPREME COURT e@journal

Dod : 19 February, 2018

Reported on : 20 February, 2018

 

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(i) CPC, Section 100 sub-section (4) - Since the High Court failed to frame any substantial question of law under sub-section(4) of Section 100 at the time of admission of the appeal, the respondents could not come to know on which question of law, the appeal was admitted for hearing - Sub-section (5) gives the respondents a right to know on which substantial question of law, the appeal was admitted for final hearing -  Sub-section (5) enables the respondents to raise an objection at the time of final hearing that the question of law framed at the instance of the appellant does ................

 

(ii) RSA – Regular Second Appeal - Respondents are only required to reply while opposing the second appeal to the question formulated by the High Court under sub-section (4) and not beyond that - If the question of law is not framed under sub-section (4) at the time of admission or before the final hearing of the appeal, there remains nothing...................

 

(iii) CPC, Section 100 sub-section (4), (5) – Mandatory - The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section(4) of Section 100 -  It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5) - .....................

 

(iv) RSA – Regular Second Appeal –  Dismissal in limine  - If the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to .................

 

 

(v) CPC, Section 100 – explained.....................

 


SUPREME COURT OF INDIA

DOD: 16.2.2018

Reported on 19.2.2018

 

(i) Life Insurance  -  Medical examination where compulsory for issuance of policy to take place prior to accepting premium - Very fact that the insurance company accepted the premium waived the condition precedent of medical examination....................

 

 

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 Insurance  -  Rejection of the policy must be made in a reasonable time so as to be fair and in consonance with the good faith standards -  ................

 

 

Insurance  - Concluded insurance contract - Proposition  as laid down in LIC v. Raja Vasireddy Komalavalli Kamba and Ors., (1984) 2 SCC 719, wherein the Court has clearly stated that the acceptance of an insurance contract may not be completed by mere retention of the premium or preparation of the policy .................

 


(2018)1 SCeJ 395

SUPREME COURT e@journal

DOD: 16.2.2018.

Reported : 17.2.18

 Per incuriam - Whether the judgment of this Court delivered by another earlier 2-Judge Bench of this Court on “exparte appraisal” is binding on this Bench ( 2 Judge bench) – No

....

Where there is a detailed judgment of the High Court dealing with several authorities, and it is reversed in a cryptic fashion without dealing with any of them, the per incuriam doctrine kicks in, and the judgment loses binding force, because of the manner in which it deals with the proposition of law in question - Also, the ratio decidendi of a judgment is the principle of law adopted having regard to the line of reasoning of the Judge which alone binds in future cases - Such principle can only be laid down after a discussion of the relevant provisions and the case law on the subject - If only one side is heard and a judgment is reversed, without any line of reasoning, and certain conclusions alone are arrived at, without any reference to any case law, it would be difficult to hold that such a judgment would be binding upon us and that we would have to follow it - It is clear, therefore, that where a matter is not argued at all by the respondent, and the judgment is one of reversal, it would be hazardous to state that the law can be declared on an ex parte appraisal of the facts and the law - In the circumstances, we are of the opinion that the judgment in Venkateswara Rao (supra) cannot deter us in our task of laying down the law on the subject.     

 

 

(i) Banking Regulation Act, Section 21A  - There can be no doubt that the Banking Regulation Act deals with the subject “banking” insofar as it licenses banking companies, as defined, and cooperative banks, and seeks to regulate them - Section 21A, though by way of amendment, is undoubtedly an integral part of the aforesaid Act relating to the interdict on the reopening of loan transactions between a banking company and its debtor, on the ground that the rate of interest charged is excessive - There can be no doubt that a law relating to indebtedness of a debtor to a banking company and the interdict against a court reopening any such transaction, on the ground that interest charged by the banking company is excessive, would relate to the business of banking.        

 

(ii) Constitution of India, Article 246  - Article 246 only states that where two entries in the Union List and the State List, respectively, have a head-on collision and are irreconcilable, then, as a last resort, the entry in the State List is to give way to the entry in the Union List - But, this is only as a last resort - First, it is incumbent upon the Court to harmonise the entries, if possible, by giving effect to both and not rendering any one of them otiose - That an entry in one list cannot be so interpreted as to cancel or obliterate another entry made in another list and in the case of an apparent conflict, it is the primary duty of the Court to harmonise the two entries - It is only when there is an irreconcilable conflict between two legislations that the Central legislation shall prevail.                [Para 16, 31]

 

(iii) Constitution of India, List I , Entry 45 and  List II,  Entry 18, 30, - Qua the general entry “banking” under Entry 45, List I, which deals with banks of all kinds and the lending by banks as well as recovery of debts by banks generally, Entry 30, List II, which deals with relief of agricultural indebtedness, is special, for the reason that indebtedness itself is only one species of banking and agricultural indebtedness is a sub-species thereof - The species of indebtedness is within Entry 45, List I, whereas the sub- species of agricultural indebtedness is within Entry 18, List II - It is only relief of agricultural indebtedness, which is a sub-sub-species of indebtedness, which is relatable to Entry 30, List II - Obviously where an entry in List II is itself subject to the corresponding entry in List I and, by the requisite declaration, Parliament occupies the field, the State legislatures are denuded of legislative competence only because the particular entry, namely Entry 24, List II, is expressly subject to Entry 52, List I - This is not the case insofar as Entry 45, List I and Entry 30, List II is concerned.

                                                                                                                                           [Para 19, 26]

Held,

 32. It is clear from a reading of this judgment that, from the point of view of a State Debt Relief Act, as the legislation is referable to the special entry “relief of agricultural indebtedness” under Entry 30, List II, as opposed to the Banking Regulation Act, under the general entry of “banking” in Entry 45, List I, any incidental encroachment by the Parliamentary statute on Entry 30, List II, read with the State Debt Relief Acts made thereunder, would make Section 21A yield to the State Debt Relief Acts, to the extent that they cover relief of agriculturists from debts due to banks. It is clear that where Section 21A of the Banking Regulation Act incidentally trenches upon the State Debt Relief Acts, enacted under Entry 30, List II, so far as relief of agricultural indebtedness is concerned, where there is State legislation on the same subject matter which directly clashes with Section 21A, Section 21A will have to give way to the State Debt Relief Acts insofar as relief from agricultural indebtedness due to banks is concerned. The non-obstante clause in Section 21A cannot override a State Debt Relief Act in this situation, as Parliament cannot give itself supremacy over State legislation where none exists under the Constitution. If this were not the case, the exclusive power of the States to make laws within List II would become illusory, and “Parliamentary paramountcy” would trap many a beneficent State legislation made within its exclusive domain, contrary to the statement of law laid down by the Privy Council in Prafulla Kumar (supra), and contrary to principle (4) laid down by Jayakar, J. in In Re CP & Berar Sales (supra), both of which have been consistently followed by several judgments of this Court.                                                                                                                              [Para 32]

Further Held,

Special Reference No.1 of 2001, (2004) 4 SCC 489. It is clear that the entire discussion begins from paragraph 13, which makes it clear that an entry in one list cannot be so interpreted as to cancel or obliterate another entry made in another list and in the case of an apparent conflict, it is the primary duty of the Court to harmonise the two entries. It is only when there is an irreconcilable conflict between two legislations that the Central legislation shall prevail.           [Para 31]

Further Held,

36. All the other entries of the State List give exclusive power to the States to legislate on the subject matters mentioned therein. If Shri Jayant Bhushan’s submission is to be accepted, this threefold scheme contained within List II itself would be violated. If Parliamentary legislation were to invade an exclusive sphere of the State, and were to prevail over State legislation made within the States’ exclusive powers, all the entries of List II would be subjected to entries of List I, which is not the constitutional scheme. Further, only one entry, namely, Entry 12 of List II, specifically excepts ancient and historical monuments and records, if Parliament declares them, by law, to be of national importance. The argument, therefore, that Section 21A is made by Parliament at the national level and is of national importance and must, therefore, prevail over State legislation made within the exclusive subject matters of List II, would again fall foul of the constitutional scheme, in that all the entries of List II would then be subject to Parliamentary law, which is of national importance. Also, Entry 30, List II cannot be read to refer to relief of agricultural indebtedness other than what is specified in List I, as that would be reading into Entry 30 words that are conspicuous by their absence, but which are found in Entries 32 and 63, List II. All this would go to show that where the States have exclusive legislative competence under certain entries of List II, legislation made thereunder cannot be effaced by legislation made under List I, which incidentally trenches upon State legislation made under an exclusive power.                                                                

 

 (iv) Banking - Indebtedness itself is only one species of banking and agricultural indebtedness is a sub-species thereof.

 

(v) Constitution of India, List II , Entries 14, 18, 45 to 48, and List II, Entry 30  - Agriculture and aspects of agriculture are exclusively given to the States  - The constitutional scheme, insofar as agriculture is concerned, is that it is an exclusive State subject to one exception – that the custody, management and disposal of property, declared by law to be evacuee property includes agricultural land, and makes it a concurrent subject - Agriculture as a subject matter is entirely and exclusively left to the States in all its aspects, save and except evacuee property under Entry 41, List III, which is also left to the States, but concurrently with Parliament, specifically including agricultural land therein - Also, we must not forget that the amendment suggested by Shri Shri Shibban Lal Saxena to make draft Entry 34 (Entry 30 of List II), a concurrent subject, was turned down - Any argument that has the effect of making relief of agricultural indebtedness a concurrent subject by which Parliamentary legislation ousts State legislation must, therefore, also be rejected.                   

 

(vi) Constitution of India, Article 246 - Doctrine of pith and substance  - Said Article refers to federal supremacy insofar as the whittling down of a State List entry is concerned, when compared with a Union List entry - Once the spheres of both the entries have been delineated, the doctrine of pith and substance comes in to test whether a particular legislation is referable, as a whole, to an entry in List I or to the competing entry in List II - Once it is found that the legislation as a whole is referable to an entry in List I, but it incidentally encroaches upon an entry in List II, there is no reason for the doctrine of unoccupied field not to apply to federal legislation - The expression “with respect to” appears in all the sub-articles of Article 246, which expression, so far as sub-articles (1) to (3) are concerned, imports the twin doctrines of incidental trenching and unoccupied field, which applies, therefore, to legislation made under sub-articles (1) to (3) of Article 246, thus making it clear that incidental encroachment by Parliament cannot be tolerated when the exclusive field allotted to the State legislature is not unoccupied.   

 

(vii) Constitution of India, Article 246 - Paramountcy principle contained in Article 246, is only taken as a last resort after harmonious construction fails, and, that too, qua entries in competing lists - Once legislation is referable to one list or the other, the doctrine of incidental trenching and unoccupied field would apply equally to both Parliamentary and State legislations.        

 

(viii) Constitution of India, Article 249, 250, 252, 253 - This is not to say that Parliament is helpless insofar as relief from agricultural indebtedness to banks is concerned - Article 249 of the Constitution enables Parliament to legislate on the aforesaid subject in the national interest if the Rajya Sabha declares, by a resolution supported by not less than 2/3rd of the members present and voting, that it is necessary or expedient in national interest that Parliament should do so - Equally, under Article 252 of the Constitution, if the legislatures of two or more States deem it desirable that Parliament should pass an Act for regulating a matter exclusively in the State List, this can be done by resolutions to that effect passed by the legislatures of such States - Also, to implement a treaty, agreement or convention with other countries, Parliament, under Article 253 of the Constitution, has the power to legislate on an exclusive State subject - In an emergency, Parliament can, under Article 250, legislate on matters exclusively reserved for the States under List II.

 

(ix) Constitution of India, Article 141  - Per incuriam - Can it be said that the judgment in in State Bank of India v. Yasangi Venkateswara Rao (1999) 2 SCC 375 is a declaration of the law under Article 141 of the Constitution, which as a matter of practice we cannot differ from being a bench of coordinate strength? - Whether the judgment of this Court delivered by another earlier 2-Judge Bench of this Court on exparte appraissal is binding on this Bench ( 2 Judge bench) – Where there is a detailed judgment of the High Court dealing with several authorities, and it is reversed in a cryptic fashion without dealing with any of them, the per incuriam doctrine kicks in, and the judgment loses binding force, because of the manner in which it deals with the proposition of law in question - Also, the ratio decidendi of a judgment is the principle of law adopted having regard to the line of reasoning of the Judge which alone binds in future cases - Such principle can only be laid down after a discussion of the relevant provisions and the case law on the subject - If only one side is heard and a judgment is reversed, without any line of reasoning, and certain conclusions alone are arrived at, without any reference to any case law, it would be difficult to hold that such a judgment would be binding upon us and that we would have to follow it - It is clear, therefore, that where a matter is not argued at all by the respondent, and the judgment is one of reversal, it would be hazardous to state that the law can be declared on an ex parte appraisal of the facts and the law - In the circumstances, we are of the opinion that the judgment in Venkateswara Rao (supra) cannot deter us in our task of laying down the law on the subject.                

Held,

Detailed judgement of the High court delivered after considering several judgments of the Federal Court, High Courts and Supreme Court holding that Section 21A of the banking regulation Act was arbitrary and violative of Article 14 of the Constitution.  By a short judgment in Yasangi Venkateswara Rao (supra), this Court upset the elaborate judgment of the High Court.  At first blush, it appears that, though cryptic, the said paragraph does contain reasons for upsetting the High Court judgment, but, on a closer look, it becomes clear that there is no reasoning worth the name for so doing. The judgement is a series of conclusions put together without any clear reasoning in support.  This is probably because only the learned Additional Solicitor General for the appellant appeared before the Court and argued the case on behalf of the appellant. The respondent, did not appear and consequently was not heard.  It will also be noticed that, despite the fact that the judgment of the single Judge referred to a very large number of High Court, Federal Court, Privy Council and Supreme Court judgments, not a single judgment is adverted to in the cryptic paragraph 7 of the judgement. It is clear, therefore, that where a matter is not argued at all by the respondent, and the judgment is one of reversal, it would be hazardous to state that the law can be declared on an ex parte appraisal of the facts and the law.  In the circumstances, we are of the opinion that the judgment in Yasangi Venkateswara Rao (supra) cannot deter us in our task of laying down the law on the subject.

 

(x) Banking Regulation Act, Section 21A  - State Debt Relief Act  - We declare Section 21A of the Banking Regulation Act to be valid as it is part of an enactment which, in pith and substance, is relatable to Entry 45, List I of the Seventh Schedule to the Constitution - However, insofar as Section 21A incidentally encroaches upon the field of relief of agricultural indebtedness, set out in Entry 30, List II, it will not operate only in States where there is a State Debt Relief Act which deals with the subject matter of relief of agricultural indebtedness, where the State Debt Relief Act covers debts due to “banks”, as defined in those Acts - In States where the State Debt Relief Act does not apply to banks at all, or applies only to certain specified banks, Section 21A will, in the former situation, apply in such States, and, in the latter situation, apply only in respect of loans made to agriculturists where such loans are given by banks other than the banks specified or covered by the concerned State Debt Relief Act, as the case may be.                                            [Para 45]

(xi ) Constitution of India, List I and  List II -  Where the States have exclusive legislative competence under certain entries of List II, legislation made thereunder cannot be effaced by legislation made under List I, which incidentally trenches upon State legislation made under an exclusive power - If Parliamentary legislation were to invade an exclusive sphere of the State, and were to prevail over State legislation made within the States’ exclusive powers, all the entries of List II would be subjected to entries of List I, which is not the constitutional scheme – Further, only one entry, namely, Entry 12 of List II, specifically excepts ancient and historical monuments and records, if Parliament declares them, by law, to be of national importance - The argument, therefore, that Section 21A is made by Parliament at the national level and is of national importance and must, therefore, prevail over State legislation made within the exclusive subject matters of List II, would again fall foul of the constitutional scheme, in that all the entries of List II would then be subject to Parliamentary law, which is of national importance - Also, Entry 30, List II cannot be read to refer to relief of agricultural indebtedness other than what is specified in List I, as that would be reading into Entry 30 words that are conspicuous by their absence, but which are found in Entries 32 and 63, List II - All this would go to show that where the States have exclusive legislative competence under certain entries of List II, legislation made thereunder cannot be effaced by legislation made under List I, which incidentally trenches upon State legislation made under an exclusive power.

 


(2018)1 SCeJ 389

SUPREME COURT OF INDIA

 

 

Suit for specific performance  -  Readiness and willingness  to perform agreement - Material on record clearly indicates that vendee did not have the necessary funds available with him to pay the balance consideration, His low income and low bank balance indicated his incapacity to make the balance payment - As far as his capacity to arrange for funds is concerned, it has come on record that vendee did take a loan from his cousin but that was only for his business and not for paying the balance consideration for the land in dispute -  There is nothing on record to indicate that R could have not only repaid the loan taken from his cousin, but additionally, could have arranged sufficient funds to pay the balance consideration - It is very doubtful, and it is easy and reasonable to infer that vendee was incapable of meeting both liabilities - Trial Judge was right in coming to the conclusion that vendee was not in a position to pay the balance consideration to the vendors, and by necessary implication, it must be held that he was neither ready nor willing to perform his part of the agreement.  

 

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Suit for specific performance  -  Readiness and willingness  to perform agreement – “no objection certificate”  - Contention that vendors did not obtain a “no objection certificate” from the authorities concerned - Clause in agreement to sell provided  “That the vendors will obtain the no objection certificate from the authorities concerned and will inform the vendee by registered post after getting the income tax clearance certificate.” - Clause of the contract is remarkably vague - There is nothing to indicate the nature of the “no objection certificate” that the vendors were required to obtain and who were the authorities from whom the “no objection certificate” was required, nor is there any indication of the purpose for which the “no objection certificate” was required -  There is no indication about the nature of the income tax clearance certificate required and for what purpose -  This clause appears to have been inserted in the agreement to sell without any application of mind and it is quite possible, as alleged by the vendors that the agreement to sell was ante-dated after the introduction of Section 260-UC in the Income Tax Act, 1961.

 

Suit for specific performance  -  Readiness and willingness  to perform agreement – At the time of grant of interim injunction prayed in an application under Order XXXIX of Code of Civil Procedure while the suit was pending in the High Court, buyer was required to deposit the balance consideration as a pre-condition for restraining the defendants from selling, mortgaging, alienating or otherwise parting with possession with the land in dispute -  The balance sale consideration was not deposited and therefore, the interim injunction prayed for by him was not granted - In the absence of any injunction against alienating the land in dispute, the defendants transferred it to a third party - Even though buyer did not deposit the balance consideration for the grant of injunction in his favour, that was of no consequence and could not be held against him.

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(2018)1 SCeJ 382

SUPREME COURT OF INDIA

 

DOD: 15th February, 2018

Reported in SCEJ: 15th February, 2018

 

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Industrial Disputes Act, 1947, Section 10, 11-A - Termination of the workman by way of punishment based on the adverse findings recorded in the domestic enquiry  - Procedure to be adopted  -  Labour Court was expected to decide in the first instance as a “preliminary issue”, was whether the domestic enquiry held by the employer was legal and proper -  If the domestic enquiry was held legal and proper then the next question which arose for consideration was whether the punishment imposed on the delinquent employee was proportionate to the gravity of the charge leveled against him or it called for any interference to award any lesser punishment by exercising the powers under Section 11-A of the ID Act -  If the domestic inquiry was held illegal and improper then the next question, which arose for consideration, was whether to allow the employer to prove the misconduct/charge before the Labour Court on merits by adducing independent evidence against the employee - The employer was entitled to do so after praying for an opportunity to allow them to lead evidence and pleading the misconduct in the written statement - Once the employer was able to prove the misconduct/charge before the Labour Court, then it was for the Labour Court to decide as to whether the termination should be upheld or interfered by exercising the powers under Section 11-A of the ID Act by awarding lesser punishment provided a case to that effect on facts is made out by the employee.                           [Para 19 to 23]

Shankar Chakravarti vs. Britannia Biscuit Co. Ltd. & Anr., AIR 1979 SC 1653 relied.  

 

Held,

Labour Court committed an error in not framing a “preliminary issue” for deciding the legality of domestic enquiry and second, having found fault in the domestic inquiry committed another error when it did not allow the appellant to lead independent evidence to prove the misconduct/charge on merits and straightaway proceeded to hold that it was a case of illegal retrenchment and held the workman’s termination as bad in law. In view of the foregoing discussion, we allow the appeal, set aside the award of the Labour Court to the extent indicated above and the judgment of the High Court and remand the case to the Labour Court. The Labour Court will now afford the employer an opportunity to lead evidence to prove the misconduct alleged by them in the written statement against the workman and depending upon the findings, which the Labour Court would record on the issue of misconduct, the issue of termination would be decided in the light of what we have observed .                     

 

(ii) Industrial Disputes Act, 1947, Section 2(oo),  10 - “Retrenchment” – Labour Court failed to notice the definition of retrenchment in Section 2(oo) of the ID Act which, in clear terms, provides that retrenchment does not include termination of the service if it is imposed by way of punishment – Workman’s services were terminated by the employer by way of punishment after holding a departmental enquiry and therefore, the termination in question could never be regarded as “retrenchment”. 

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(2018)1 SCeJ 370

SUPREME COURT e@journal

Dod : 15th February, 2018 /  Reported : 15th February, 2018

 

Arbitration & Conciliation Act, 1996 -  Enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings.

  

 

Arbitration & Conciliation Act, 1996 -  CPC, Section 37, 38, 39, 46   -  Under section 46 (Precepts) of the CPC application of the decree holder is made to the Court which passed the decree, which issues the precepts to any other Court competent to execute the said decree - Section 37 of the CPC provides Expression “the Court which passed the decree” -  In the case of an award passed under the Arbitration Act, there is no decree passed but the award itself is executed as a decree by fiction -  The provisions of the said Act traverse a different path from the Arbitration & Conciliation Act, 1996, which required an award made to be filed in Court and a decree to be passed thereon whereupon it would be executable – Arbitration Act. [Para 10]

 

Arbitration & Conciliation Act, 1996, Section 36 - Award – Execution of  - In the case of an award passed under the Arbitration Act, there is no decree passed but the award itself is executed as a decree by fiction –Section 36 would show that an award is to be enforced in accordance with the provisions of the CPC in the same manner as if it were a decree -  It is, thus, the enforcement mechanism, which is akin to the enforcement of a decree but the award itself is not a decree of the civil court as no decree whatsoever is passed by the civil court -  It is the arbitral tribunal, which renders an award and the tribunal does not have the power of execution of a decree - For the purposes of execution of a decree the award is to be enforced in the same manner as if it was a decree under the said Code.  [Para 10, 15]

Arbitration & Conciliation Act, 1996, Section 32, 42 - Provides for arbitral proceedings to be terminated by the final arbitral award - Thus, when an award is already made, of which execution is sought, the arbitral proceedings already stand terminated on the making of the final award - Section 42 of the Act, which deals with the jurisdiction issue in respect of arbitral proceedings, would not have any relevance.  [Para 19]

 

 

Arbitration & Conciliation Act, 1996 - CPC , Order XXI, Rule 6, 11(2)  – Execution Award - Order XXI, Rule 6 of the CPC , provides the manner in case a Court desires that its own decree is to be executed by another court - Manner of presentation of an application is contained in Rule 11(2) - What is sought to be disclosed under rule 11(2) is the details like the number of suits, appeal against the decree, etc., which really does not have a relevance to the fiction of an award passed under the Arbitration Act to be treated as a decree of the Court for purposes of execution.

 

 

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(2018)1 SCeJ 328

SUPREME COURT OF INDIA

DOD: 12th February, 2018.

Reported : 12th February, 2018.

 

 

Indian Penal Code, 1860 , Section 201 - Whether the conviction under Section 201 of the IPC could have been maintained while acquitting him of the main offence under Section 498A of the IPC - The law is well-settled that a charge under Section 201 of the IPC can be independently laid and conviction maintained also, in case the prosecution is able to establish that an offence had been committed, the person charged with the offence had the knowledge or the reason to believe that the offence had been committed, the said person has caused disappearance of evidence and such act of disappearance has been done with the intention of screening the offender from legal punishment - Mere suspicion is not sufficient, it must be proved that the accused knew or had a reason to believe that the offence has been committed and yet he caused the evidence to disappear so as to screen the offender - The offender may be either himself or any other person.

 

Indian Penal Code, 1860 , Section 201 - Mere suspicion is not sufficient, it must be proved that the accused knew or had a reason to believe that the offence has been committed and yet he caused the evidence to disappear so as to screen the offender - The offender may be either himself or any other person. 

 

 

Indian Penal Code, 1860 , Section 498A and 201 - Wife committed suicide by hanging –  High Court is not justified in maintaining the conviction under Section 201 only on the ground that no communication was given to the police and that the post-mortem had not been performed –  Mere fact that the deceased allegedly died an unnatural death could not be sufficient to bring home a charge under Section 201 of the IPC,  unless the prosecution was able to establish that the accused person knew or had reason to believe that an offence has been committed and had done something causing the offence of commission of evidence to disappear, he cannot be convicted - The last rites of the deceased were performed in the presence of the members of her family - They had no suspicion at that time of the commission of any offence -  The private complaint was lodged after more than three months - There is no charge under Section 202 of the IPC of intentionally omitting to give information of the unnatural death to the police - Not the case of the complainant that he had requested for post-mortem of the body and that intimation should have been given to the police before the last rites were performed – In Suicide note left by the deceased she had taken the entire blame on herself - Yet the court has taken the view, that the deceased might have been in a state of depression having remained alone for most of the time and it amounted to torture -  The appellant has been acquitted of the offence under Section 498A by the High Court, and rightly so - Neither the Sessions Court nor the High Court has any case that there is any intentional omission to give information by the appellant to the police -  Prosecution also has no case under Section 202 of the IPC against the appellant - Not justified in convicting the appellant under Section 201 of the IPC.

Hanuman and others v. State of Rajasthan 1994 Supp (2) SCC 39, relied.

 

 

 

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(2018)1 SCeJ 314

SUPREME COURT OF INDIA

 

 

 

 

Service Matter – Delay and laches  - Recruitment to the post of Additional Professor was carried out in 2005 - That was well over 12 years ago - The petitioners have instituted these proceedings under Article 32 in November 2017 to question the order of ranking made by the Selection Committee in  2005 - There is no cogent explanation for this belated recourse to legal remedies - The petitioners cannot legitimately explain the delay on their part merely by contending that they were representing to the First respondent to remedy their grievances - The petitioners may have believed in good faith that the AIIMS administration would pay heed to their grievances - They had a sympathetic ear of the Union Ministry of Health and Family Welfare - But twelve years is too long a period, by any means, to not seek recourse to judicial remedies - There has to be an element of repose and a stale claim cannot be resuscitated - AIIMS. State of Uttaranchal v Shiv Charan Singh Bhandari, relied. (2013) 12 SCC 179, relied.

 Held,

As the narration of facts would indicate, the Governing Body had on 14 April 2012 decided to maintain the order of merit in terms of which the Fourth respondent was ranked first, above the two petitioners. Even thereafter, a three member committee was constituted by the Governing Body in October 2012 and a decision was once again taken on 19 July 2013 to maintain the order of seniority. This was reiterated on 12 May 2014 and 22 June 2016. The petitioners were thus aware of the consistent position which was adopted by the First respondent. The delay on their part in seeking recourse to their legal remedies must weigh against them. At this stage it would be manifestly unfair to unsettle the inter se seniority between the three Professors in the CTVS department by reopening the recommendation made by the Selection Committee in 2005.                                                                                                          

The minutes of the meeting of 12 September 2005 indicate that the views of the technical experts were considered. To re-evaluate what took place well over twelve years ago would neither be feasible nor appropriate. The policy decision of 1997 indicates that the gradings given by all the members of the Selection Committee and the technical experts are to be placed before the Chairman of the Selection Committee and the final selection “may be made” on the basis of the gradings/markings given by the members of the Selection Committee and the technical experts. The Selection Committee which was constituted in 2005 considered the issue of selection and inter se ranking of the selected candidates. In making its final recommendation in regard to their order of merit, upon appointment as Additional Professors, the Selection Committee had due regard to relevant matters including the performance of the candidates, their records and the opinion of the experts. Hence, the ranking which has been assigned cannot be regarded as being in breach of the policy decision of 1997. It would be iniquitous to unsettle the position of seniority, over twelve years after the petitioners and the Fourth respondent were selected as Additional Professors. Even thereafter, when each of them has been promoted as a Professor, it is the Fourth respondent who has been ranked higher than the petitioners.        

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(ii)    Service Matter – Expert in selection committee – AIIMS  policy - Judgment of the Delhi High Court in Dr Dilip Kumar Parida v AIIMS , LPA 360 of 2004, decided on 9 January 2012,holds that the view of the experts who are co-opted in the selection process is only advisory and that the members of the Standing Selection Committee of AIIMS are not bound by their opinion - The above statement of position in the judgment of the Delhi High Court should not be read to suggest that the experts who are co-opted as part of the Selection Committee have no role and that the other members have to decide on the selection, independently of their views - Experts are co-opted in order to ensure that the Selection Committee is broad-based; that the selection is objective; and that the experience and knowledge of experts drawn from outside provides a valuable input in the ultimate decision – Delhi High Court has to be construed to mean that while the views of the experts co-opted to the Selection Committee constitute a valuable perspective and input, they cannot be regarded as binding - The members of the Selection Committee would have to consider the views of the experts and to evaluate them together with all other relevant circumstances - AIIMS.  

 

 

(iii) AIIMS – Promotion -  Policy adopted in 1997 – “that the gradings allocated by the members of the Selection Committee and the technical experts are to be placed before the Chairman of the Selection Committee and the final selection of the candidates “may be made” on the basis of the gradings/markings of the members of the committee and the technical experts. The expression “may be made” has been approved in place of “will be made” as recorded earlier -  We cannot subscribe to the contention of the petitioners that it is only a tie which can be resolved by the Chairperson and in all other cases, the Committee is obliged to make its selection on a mathematical summation of grades - The fact that selection ‘may be made’ (this expression being in substitution of ‘will be made’) on the basis of the grading given by the members of the Selection Committee and the technical experts suggests that the determination of merit is not merely a mechanical totalling of grades allotted - The Selection Committee has to act objectively - This undoubtedly requires giving due credence to the view of the experts - But while doing so, it must have due regard to all relevant aspects bearing on the interest of the institution - The Selection Committee has to assess the credentials of the candidates which would include the service profile of the candidate.  

 

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(2018)1 SCeJ 388

SUPREME COURT OF INDIA

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Constitution of India, Article 227  - It is the duty of the High Court while exercising the supervisory jurisdiction to see that the subordinate Court has exercised its powers in accordance with law and did not commit any illegality or perversity in reaching to its conclusion -  While recording a finding, if it is noticed by the High Court that the subordinate Court has failed to take into consideration the material evidence or recorded a finding without there being any evidence, then the High Court would be entitled to interfere in such finding in exercise of its supervisory jurisdiction under Article 227 of the Constitution - High Court has not committed a jurisdictional error when it went on to re-appreciate the evidence and then reversed the finding of the Industrial Court under Article 227 of the Constitution.

 

 

Constitution of India, Article 136 - Mixed question of fact and law -   Once the Courts record a finding on fact, be that of concurrence or reversal, the finding is usually held binding on this Court while hearing the appeal under Article 136 of the Constitution - It is only when such finding is found to be against any provision of law or evidence or is found to be wholly perverse to the extent that no average judicial person could ever record such finding, it would not be held binding on the superior Court -  This Court has, however, cautioned that it must be remembered that even if the question raised is one of the mixed question of fact and law, this Court would not readily interfere with the conclusion of the Tribunal unless it is satisfied that said conclusion is manifestly or obviously erroneous. (See AIR 1967 SC 428).

 

 

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Juvenile Justice Act

(2018)1 SCeJ 347

 

SUPREME COURT OF INDIA

 

Delivered : February 9, 2018

Reported : February 9, 2018

 

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(i) Courts  - Child friendly courts  - Chief Justice of each High Court to seriously consider establishing child friendly courts and vulnerable witness courts in each district - Inquiries under the JJ Act and trials under other statutes such as the Protection of Children from Sexual Offences Act, 2012, the Prohibition of Child Marriage Act, 2006, trials for sexual offences under the Indian Penal Code and other similar laws require to be conducted with a high degree of sensitivity, care and empathy for the victim - It is often said that the experience in our courts of a juvenile accused of an offence or the victim of a sexual offence is traumatic - We need to have some compassion towards them – even juveniles in conflict with law, since they are entitled to the presumption of innocence - and establishing child friendly courts and vulnerable witness courts is perhaps one manner in which the justice delivery system can respond to ease their pain and suffering - Another advantage of such child friendly courts and vulnerable witness courts is that they can be used for trials in which adult women are victims of sexual offences since they too are often traumatized by the not so friendly setting and environment in our courts.

 

(ii) Juvenile Justice (Care and Protection of Children) Act, 2000 - Juvenile Justice (Care and Protection of Children) Act, 2015 - With the need to invigorate the juvenile justice system in the country, the following directions ought to be given and we do so:

 

 

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(2018)1 SCeJ 319

SUPREME COURT e@Journal

 

Date of Judgement:  07/02/2018, Published in journal: 08/02/2018

 

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Supreme Court e@journal

 

Arbitration  - Discharge receipt  -  Full and final discharge voucher  - Coercion – Arbitrable dispute  - When we refer to discharge of a contract by an agreement signed by both the parties or by execution of a full and final discharge voucher/receipt by one of the parties, we refer to an agreement or discharge voucher which is validly and voluntarily executed - If the party which has executed the discharge agreement or discharge voucher, alleges that the execution of such discharge agreement or voucher was on account of fraud/coercion/undue influence practised by the other party and is able to establish the same, then obviously the discharge of the contract by such agreement/voucher is rendered void and cannot be acted upon - Consequently, any dispute raised by such party would be arbitrable - But in case the party is not able to establish such a claim or appears to be lacking in credibility, then it is not open to the courts to refer the dispute to arbitration at all - Arbitration and Conciliation Act, 1996 (26 of 1996), Section 11.      

 

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(2018)1 SCeJ 284

 

 

(i) Hindu Succession (Amendment) Act, 2005, Section 6 -  Pending suit for partition , rights of daughter crystallised – Entitled to share -  Suit for partition and a separate possession filed by sons of the deceased propositus of a Hindu Joint Family – Suit filed stating that the two sons and widow were in joint possession of the properties as coparceners and properties mentioned were acquired out of the joint family nucleus in the name of deceased propositus - Case set up was that the appellants-daughters  were not the coparceners in the said joint family as they were born prior to the enactment of Hindu Succession Act, 1956 - Section 6 of the Act was amended in the meantime as the decree was passed by the trial court only in the year 2007 - Thus, the rights of the daughters got crystallised in the year 2005 - So far as partition suits are concerned, the partition becomes final only on the passing of a final decree – Appellant daughters entitled to share. 

Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr. (2011) 9 SCC 788, relied.       [Para 27]

 

(ii) Hindu Succession Act, 1956,  Section 6 - Explained - Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the sonIt should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birthIt is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b).              [Para 24]

Facts:

 Appellants are the daughters of GS , propositus of a Hindu Joint Family - Apart from these two daughters, he had two sons, A and V -  GS died in the year 2001 leaving behind the aforesaid two daughters, two sons and his widow, S - After his death, in 2002 son A filed the suit for partition and a separate possession of the suit property stating that the two sons and widow were in joint possession of the aforesaid properties as coparceners and properties mentioned were acquired out of the joint family nucleus in the name of GS -  Case set up was that the appellants-daughters  were not the coparceners in the said joint family as they were born prior to the enactment of Hindu Succession Act, 1956

 

Quote -  Mitakshara law

The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.” [Para 23]

 

 

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Criminal trial

 

 

 

 

Date of Judgement: 30th January, 2018

Date of reporting : 30th January, 2018

(2018)1 SCeJ 244

PLR - Supreme Court e@journal

 

 Criminal trial - Proof beyond reasonable doubt -  We are conscious of the fact that the golden thread which passes through out criminal jurisprudence is the standard of “beyond reasonable doubt”, particularly, in this case, where certain evidences were not brought on record before the Court - Accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt - The law does not permit the court to convict the accused based on suspicion or on the basis of preponderance of probability - An ingenious mind can question anything and, on the other hand, there is nothing which it cannot convince - When you consider the facts, you have a reasonable doubt as to whether the matter is proved or whether it is not a reasonable doubt in this sense - The reasonableness of a doubt must be a practical one and not on an abstract theoretical hypothesis - Reasonableness is a virtue that forms as a mean between excessive caution and excessive indifference to a doubt - Indian Penal Code, 1860 (45 of 1860) Sections 143, 144, 147 and 148.          

 

Criminal Trial  - In every criminal trial, normally discrepancies are bound to occur due to long lapse of time between the date of incident and deposition of witnesses before the Court - When the contradictions are so serious and create doubt in the mind of the court about the truthfulness of the statement, then such evidence is not safe to rely upon – On facts we feel that the contradictions in the evidence concerning this case are very trivial in nature and will not affect the case of the

 

Criminal Trial  -   Statement was not made part of the prosecution evidence -    Suppression of document  - Case of prosecution that the deceased gave the statement to P.W.11 giving the names of assailants  - This particular statement was not made part of the prosecution evidence -  Even in his statement to P.W.11, the names of the accused 2 and 3 did not find place -  Objection taken by the State that the Court should not take such evidence into consideration as such statement does not have any significance in law - We cannot ignore the fact that there is clear cut suppression of this document as the State is unable to explain the reason as to why such important document could not be produced before the Court - Although the case diary has not been produced before the Court but the possibility of existence of such document is supported by P.W.11’s evidence which creates a suspicion in our mind concerning the implication of Accused Nos. 2 and 3 - Indian Penal Code, 1860 (45 of 1860) Sections 143, 144, 147 and 148.  

Held,

The deceased gave statement to the police, and for the reasons best known to them, the said statement is not part of the prosecution evidence.  In the said statement, the deceased has not stated the names of accused Nos. 2 and 3, secondly P.W.2 in the supplementary statement stated their names, but he has not specifically attributed any weapon used by him. P.W.11 has also not attributed any overt acts to accused Nos. 2 and 3. During investigation, the clothes of P.Ws. 2 and 3 were sent for expert opinion and it discloses that there were no blood stains on the clothes. No weapons were recovered.  Except the oral evidence of P.W.2, there is no other evidence on record to connect accused Nos. 2 and 3 to the crime - P.W.2’s oral testimony without independent corroboration cannot be basis for the conviction.  Both the Courts went wrong in finding these accused guilty without there being any evidence which points out at the guilt of these accused beyond reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt. Accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt.  The law does not permit the court to convict the accused based on suspicion or on the basis of preponderance of probability.

 

 

Test Identification Parade - As per the evidence of P.W.2, the accused were known to him and the other eye-witness has never stated that he has seen the face of the assailants - The necessity of holding Test Identification Parade arises only when the accused are not previously known to each other - The Test Identification Parade is not a substantial piece of evidence, but is useful for corroboration with the other evidence - It is a rule of prudence - The Test Identification Parade, even if it is held may not be considered in all cases as trustworthy evidence on which the conviction of the accused can be sustained - In the case on hand, the absence of Test Identification Parade will not vitiate the case of the prosecution as the accused and P.W.2 were known to each other – Criminal trial.

 

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Civil Procedure Code, 1908 (V of 1908), Order 5 Rule 17  , Order 5 Rule 20  . 

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Civil Procedure Code, 1908 (V of 1908), Order 6 Rule 17

 

SUPREME COURT OF INDIA

Judgement dated 25.1.18

Reported *(2018)1 SC e@Journal 208*

 

Civil Procedure Code, 1908 (V of 1908), Order 6 Rule 17 – Allowed  - Firstly, the suit is still at the initial stage, i.e., the trial has not yet begun -  Second, the proposed amendment sought in the plaint does not change the nature of suit - Third, the applications could not be said to have been filed by the plaintiff belatedly because the suit had been dismissed by the Trial Court as not maintainable in its initial stages and for all these years it was sub judice in appeal - It is only after the Appellate court remanded the case to the Trial Court for its trial, the plaintiff  filed the application in the suit and sought permission to amend the plaint - Fourth, the Courts, in these circumstances, should have been liberal in allowing the proposed amendment.

 

Civil Procedure Code, 1908 (V of 1908), Order 7 Rule 14 – Application seeking permission to file some additional documents - So far as the filing of documents is concerned, this application too should have been allowed as the suit is still at its initial stage and the trial is yet to begin and when the documents filed are alleged to be that of the respondents themselves having obtained through RTI, there is no reason why the  plaintiff  be not allowed to file them – Right to information – Documents obtained through RTI.

 

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Cr.P.C. Section 439  - 

Bail cancelled

(Supreme Court , 23/01/2018)

(2018)1 SCeJ 200

PLR - Supreme Court e@journal

 

Cr.P.C. Section 439  - High Court granted interim protection with the directions that  “Meanwhile, in case the petitioner surrenders before the trial Court within one week from today, he shall be admitted on bail on his furnishing bail bonds and surety bonds to the satisfaction of the trial Court” – Accused surrendered before the trial court who released the accused on bail with the order “In view of the order’s of the High Court, applicant is ordered to be released on bail” -  Subsequently on the next date high court dismissed the bail application as being infructuous holding “Learned Counsel for the petitioner states that in terms of order dated 11.11.2016 passed by this Court, the petitioner has surrendered before the trial court. Thereafter, the petitioner has been ordered to be released on bail. Accordingly, this petition praying for grant of anticipatory bail the petitioner, has been rendered infructuous. Dismissed as having become infructuous.” - It is unfortunate to note that the order of the High Court on the first instance clearly points out that it has virtually directed the course of action to be undertaken by the subordinate court - It is not expected from the High Court to pass such mandatory orders commanding the subordinate court to compulsorily grant bail. Recently, this court on similar facts in Madan Mohan v. State of Rajasthan, Criminal Appeal No. 2178 of 2017, has laid down that courts cannot issue mandatory directions which breach the independence of subordinate courts - Therefore, such circuitous method undertaken by the respondent in obtaining a bail is a gross abuse of the court process undertaken in bad faith - Order of the High Court set aside.   

 

Cr.P.C. Section 439  - Accused citizen of different country  - We see no reason to accord any special consideration by virtue of a simple fact that he is a citizen of different country - The law under Section 439 of Cr.P.C is very clear and in the eyes of the law every accused is the same irrespective of their nationality.

 

Cr.P.C. Section 439  - This case is not an appeal seeking cancellation of bail in any sense rather, this case calls for the legal sustainability of the impugned order granting bail to the accused-respondent herein - The difference between the cancellation of the bail and a legal challenge to an order granting bail for non-consideration of material available on record is a settled proposition - To clarify, there is no ground pleaded herein that a supervening event breaching bail conditions is raised. [refer State through C.B.I. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189] - Having cleared this confusion, we may clarify, though seriously urged by the counsel appearing on behalf of the respondent no.1, that there is no warrant for cancellation of bail as there has been no breach of bail condition, yet such submission is not countenanced under the law.                                                                

 

(Appeal against the order passed by the High Court of Punjab and Haryana, at Chandigarh, in CRM-M-36539/2016, dated 19.01.2017)

 

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Cheque bouncing Section 138 - A paradigm shift

 

 

Corporates especially banks and financial institutions need to make a paradigm shift in their collection strategies. The apex court in last weeks ruling has held

“ Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused”

meaning thereby that though the debt due may be much larger , however on the payment of the Cheque amount with interest and costs as assessed by the Court is to be paid by a specified date, the Court is entitled to close the proceedings and discharge the accused-defaulter. This changes the way FIs have looked at Section 138 as an inexpensive and effective tool to recover its full dues when the cheque has been issued for a smaller amount. Eg for a liability of Rs 1cr (say) , the cheque having been issued for Rs 3 Lac (say), the complainant shall be entitled to collect only Rs 3 lacs plus costs and not press for the full amount of the liability. This judgement changes the complete position of law form a position where the complainant could have refused settlement unless it was at its own terms.

 

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Section 138: Supreme Court : (2017-4) PUNJAB LAW REPORTER 409

 


Transplantation of Human Organs and Tissues Act, 1994

(2017) PLRIJ 71 (Del.)

DELHI HIGH COURT

Transplantation of Human Organs and Tissues Act, 1994 - close relation  not  near relation  - Prospective donor is  Mother-in-law of recipient's son - The Appellate Authority has completely shut its eyes to the relationship between the parties which is that of a close relation if not a near relation as defined under the Act -  The Appellate Authority has completely ignored the aspect that Act does not lay down an absolute prohibition but it puts a responsibility on the authorities to ensure that the human organ is not made part of a commercial transaction - It is only in cases where there is a financial angle or financial motive attributed or attached to such a transaction that the Act prohibits such an action - In the present case the connection has been shown between the donor and the recipient - Even though they are not covered under the definition of Near Relation but they are certainly closely related - Authorization Committee is directed to forthwith grant its approval for transplant.

 

 

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(2017) PLRIJ 71 (Del.)

 


Contempt of Courts Act, 1971, Section 2(b)  -  Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 – Majithia Wage Board Award  - Having clarified all doubts and ambiguities in the matter and upon holding that none of the newspaper establishments should, in the facts of the cases before us, be held guilty of commission of contempt, we direct that henceforth all complaints with regard to non-implementation of the Majithia Wage Board Award or otherwise be dealt with in terms of the mechanism provided under Section 17 of the Act - It would be more appropriate to resolve such complaints and grievances by resort to the enforcement and remedial machinery provided under the Act rather than by any future approaches to the Courts in exercise of the contempt jurisdiction of the Courts or otherwise.

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(2017)1 SCeJ 142

Supreme Court e@Journal

 


Constitution of India, Article 32 - Insofar as the writ petitions seeking interference with transfer/termination, as the case may be, are concerned, it appears that the same are relatable to service conditions of the concerned writ petitioners - Adjudication of such question in the exercise of high prerogative writ jurisdiction of this Court under Article 32 of the Constitution would not only be unjustified but such questions should be left for determination before the appropriate authority either under the Act or under cognate provisions of law (Industrial Disputes Act, 1947 etc.), as the case may be - Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 – Majithia Wage Board Award.       

 

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(2017)1 SCeJ 142

Supreme Court e@Journal



Contempt of Courts Act, 1971, Section 2(b)  - Part implementation/non-implementation of the Majithia Wage Board Award by the concerned newspaper establishments is on account of what the said establishments have perceived to be the scope and ambit of the Majthia Wage Board Award as approved and notified by the Central Government, the challenge to which has been dismissed by this Court - The stand taken for what is alleged to be non-implementation or partial implementation of the Award, as may be, having clearly stemmed from the understanding of the Award of the concerned newspaper establishments in a particular manner, it is our considered view that the said establishments cannot be held to have wilfully disobeyed the judgment of this Court  - At best, the default alleged has taken place on account of a wrong understanding of the Award as upheld by this Court - This would not amount to wilful default so as to attract the liability of civil contempt as defined under Section 2(b) of the Contempt of Courts Act, 1971 -  The default alleged though is unmistakably evident to us, in the absence of any wilful or deliberate intention to commit the same cannot make any of the newspaper establishments liable for contempt - On the other hand, they are entitled to one more opportunity to implement the Award in its proper spirit and effect - Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955. 

 

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(2017)1 SCeJ 142

Supreme Court e@Journal

 


Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955  -   Majithia Wage Board Award, Clause 20(j) - What the Act guarantees to each "newspaper employee" as defined in Section 2(c) of the Act is the entitlement to receive wages as recommended by the Wage Board and approved and notified by the Central Government under Section 12 of the Act - The wages notified supersedes all existing contracts governing wages as may be in force -  However, the Legislature has made it clear by incorporating the provisions of Section 16 that, notwithstanding the wages as may be fixed and notified, it will always be open to the concerned employee to agree to and accept any benefits which is more favourable to him than what has been notified under Section 12 of the Act - Clause 20(j) of the Majithia Wage Board Award will, therefore, have to be read and understood in the above light - The Act is silent on the availability of an option to receive less than what is due to an employee under the Act - Such an option really lies in the domain of the doctrine of waiver, an issue that does not arise in the present case in view of the specific stand of the concerned employees in the present case with regard to the involuntary nature of the undertakings allegedly furnished by them - The dispute that arises, therefore, has to be resolved by the fact finding authority under Section 17 of the Act. 

 

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(2017)1 SCeJ 142

Supreme Court e@Journal


 

DECREE - NULLITY

LRS NOT BROUGHT ON RECORD

 

 (i) Code of Civil Procedure,1908 (V of 1908), Order 22 Rules 3 and 4 -  On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party -  In other words, on 91st day, there is no appeal pending before the Court. It is “dismissed as abated”. 

 

Held, appellant and the two respondents expired during the pendency of second appeal and no application was filed to bring their legal representatives on record. The legal effect of the non-compliance of Rules 3(2) and 4(3) of Order 22, therefore, came into operation resulting in dismissal of second appeal as abated on the expiry of 90 days from 10.05.1994, i.e., on 10.08.1994. The High Court, therefore, ceased to have jurisdiction to decide the second appeal which stood already dismissed on 10.08.1994. Indeed, there was no pending appeal on and after 10.08.1994.                                                                                  [Para 20]

 

(ii) Code of Civil Procedure,1908 (V of 1908), Order 22 Rules 3 and 4 – Revival of appeal -   On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party -  Appeal could be revived for hearing only when firstly, the proposed legal representatives of the deceased persons had filed an application for substitution of their names and secondly, they had applied for setting aside of the abatement under Order 22 Rule 9 of the Code and making out therein a sufficient cause for setting aside of an abatement and lastly, had filed an application under Section 5 of the Limitation Act seeking condonation of delay in filing the substitution application under Order 22 Rules 3 and 4 of the Code beyond the statutory period of 90 days - If these applications had been allowed by the High Court, the second appeal could have been revived for final hearing but not otherwise  - No such applications filed -  Such was not the case here because no such applications had been filed – Decree a nullity.

 [Para 21]

 

(iii)Decree -   Nullity - Effect of -  A decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder - The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case.                                                                                     [Para 22]  

 

(iv) Decree against a dead persons -   Nullity - Effect of -  It is a settled principle of law that the decree passed by a Court for or against a dead person is a “nullity” - The appellants are the legal representatives of defendant Nos. 2 and 4 on whom the right to sue has devolved - They had, therefore, right to question the legality of the impugned order inter alia on the ground of it being a nullity -  Such objection, in our opinion, could be raised in appeal or even in execution proceedings arising out of such decree.               [Para 22, 23]

 

 

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(2017) PLRIJ 43 (Ker.) 

 

Negotiable Instruments Act, 1881, Section 138, 142 -  Suppression of crucial facts has to be viewed very seriously - That suppression of material facts relating to the alleged transaction in the notice issued before filing the suit or the complaint is an artifice used by certain litigants, the intention of which is very clear and they want to develop a story after knowing the defence that may be set up by the opposite party and the doors of the court should be closed to such fortune seekers -  Accused entitled to acquittal.

Held,

following K.K. Divakaran v. State of Kerala 2016 (4) KLT 233 : 2016 (4) KHC 901, that in a criminal case the accused should be informed before the trial not only of the nature of the offence but also the particulars of the transaction which are necessary for him to effectively meet the case against him. But unscrupulous complainants refuse to do so with the object of denying the accused a fair trial, which is a right guaranteed under Article 21 of the Constitution and an accused in a complaint case filed under Sec.142 of the N.I.Act also is entitled to know before the trial the particulars of the accusation against him and that suppression of these particulars in the complaint alone is sufficient to order his acquittal.

 

(ii) Negotiable Instruments Act, 1881  , Section 138, 142 -  Cheque – Set hold  - Issuance of cheque admitted - Accused could establish a strong case that she had a bonafide dispute regarding the passing of the cheque in favour of the complainant - These bonafide disputes raised by the accused had led to the issuance of the dishonour memo on account of the stop payment instructions - This should be seriously reckoned from point of view of the crucial fact that the complainant has suppressed even the details given in reply notice, in her complaint, Section 200 sworn affidavit as well as in her chief examination - The very act of the complainant is suppressing these crucial aspects, would lead to a serious inference that even the complainant was under the impression that the accused was having a truthful defence - Therefore, when the accused has raised a bonafide and substantial dispute regarding the very entitlement of the complainant to receive the cheque amount, to get cheque passed, the accused has been clearly able to prove her contra-case.

 

 

(iii) Negotiable Instruments Act, 1881, Section 138, 139 -  Complainant has suppressed even the details given in reply notice, in her complaint, Section 200 sworn affidavit as well as in her chief examination - The very act of the complainant is suppressing these crucial aspects, would lead to a serious inference that even the complainant was under the impression that the accused was having a truthful defence - Therefore, when the accused has raised a bonafide and substantial dispute regarding the very entitlement of the complainant to receive the cheque amount, to get cheque passed, the accused has been clearly able to prove her contra-case.

 

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(2017)1 SCeJ 120

SUPREME COURT OF INDIA

 

 

 

(i) Negotiable Instruments Act, Section 138 - When compensation is ordered as payable for an offence committed under Section 138 of the Negotiable Instruments Act, and in default thereof, a jail sentence is prescribed and undergone, is compensation still recoverable ? (Yes) – Cheque of Rs. 2.75 lacs dishonoured  - Trial court held accused guilty and ordered simple imprisonment for 4 months for the offence u/s 138 of the Negotiable Instruments Act and further directed to pay a compensation of Rs.2,75,000/- to the complainant u/s 357(3) of Cr.P.C. and in default of payment of compensation, to undergo simple imprisonment for 1 month - Appellate Court, confirmed the conviction, but reduced the sentence to imprisonment till rising of the Court - Order to pay compensation with the default clause was, however, sustained - Accused underwent imprisonment till the rising of the Court and also underwent the default sentence for non-payment of compensation – Application filed under Section 421 of the Criminal Procedure Code for realising compensation by issuing a distress warrant against the accused - Distress warrant for realisation of compensation issued - High Court, held that despite the fact that the default sentence was undergone, yet, under the provisions of the Code of Criminal Procedure, compensation was recoverable, and upheld the orders of the learned Judicial Magistrate – Order Upheld -  Criminal Procedure Code, 1908 Section 357(3), 421.

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