Reports of the

Supreme Court of India


A

Admissibility of documents - At interlocutory stage, during the pendency of the suit -  Admissibility, reliability and registrability of the documents shall be considered independently only at the time of hearing of the trial and not prior thereto - High Court should not have interfered at the stage when the trial was still in progress -  Set aside the impugned order passed by the High Court without going into the merits of the case.   (2016)3 PLRSC 286

Admissions of fact  - Advocate - Admissions of fact made by a counsel  - Is binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the Court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. (2016)3 PLRSC 654

Adverse possession - As on the date of the suit, the respondents had not completed 12 years in possession of the suit property so as to entitle them to claim adverse possession against BDA, the true owner -  The argument that possession of the land was never taken also needs notice only to be rejected for it is settled that one of the modes of taking possession is by drawing a Panchnama which part has been done to perfection according to the evidence led by the defendant BDA. Tamil Nadu Housing Board v. A. Viswam (dead) by Lrs. AIR 1996 SC 3377 and Larsen & Toubro Ltd. v. State of Gujarat and Ors. AIR 1998 SC 1608, relied. (2016)3 PLRSC 801

Advocate - Admissions of fact made by a counsel  - Is binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the Court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions - Admissions of fact. (2016)3 PLRSC 654

Advocate - An advocate under the Code expressly includes a group of advocates and a law firm whose partner or associate acts for the client - Bar Council of India Rules, 1975. (2016)3 PLRSC 654

Advocate – Concession - Made by counsel - Court ought not to have issued the impugned directions merely because a request was made by the learned counsel appearing for the respondents -  The same would hold true even if a concession was made by the counsel for the appellant -  The Court, while, exercising its powers under Article 227 of the Constitution of India, ought to have confined itself to the subject matter and the issues raised by parties in the Writ Petition - The digression of or expansion of the supervisory jurisdiction under Article 227 of the Constitution of India, would open precarious floodgates of litigation should the limitation on the supervisory jurisdiction not be observed mindfully - If for any reason, the Writ Court perceived the oral request made by the respondents to have justified the ends of justice and desired to accept the concession so made by the counsel for appellant-Society, the said request not being the subject matter of the Writ Petition required the Court to query whether the counsel for the appellant-Society has been authorized to make such a statement by the appellant-Society or whether any such resolution has been passed by the appellant-Society giving concession in matters of this nature - Since the required caution was not exercised by the learned Judges of the Writ Court, the directions issued by the Writ Court suffer from infirmity and hence require to be set aside – Duty of court.               (2016)3 PLRSC 654

Advocate – Duty of - It is the solemn duty of an advocate not to transgress the authority conferred him by the client - It is always better to seek appropriate instructions from the client or his authorized agent before making any concession which may, directly or remotely, affect the rightful legal right of the client - The advocate represents the client before the Court and conducts proceedings on behalf of the client. He is the only link between the Court and the client - Therefore his responsibility is onerous - He is expected to follow the instructions of his client rather than substitute his judgment - Bar Council of India Rules, 1975. (2016)3 PLRSC 654

Advocate and client - A client is not bound by a statement or admission which he or his lawyer was not authorised to make -  Lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed - Neither the client nor the Court is bound by the lawyer’s statements or admissions as to matters of law or legal conclusions -  Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client’s instructions rather than substitute their judgment for that of the client - We may add that in some cases, lawyers can make decisions without consulting client - While in others, the decision is reserved for the client -  It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights. (2016)3 PLRSC 654

Advocate’s duty to the Client – Code of ethics - Rule 26 thereunder mandates that an “advocate shall not make any compromise or concession without the proper and specific instructions of his/her client”  -  ‘Code of Ethics’ – Advocate. (2016)3 PLRSC 654

Advocates Act - ‘Code of Ethics’ - Prescribed by the Bar Council of India, in recognition of the evolution in professional and ethical standards within the legal community, provides for certain rules which contain canons of conduct and etiquette which ought to serve as general guide to the practice and profession. (2016)3 PLRSC 654

Affidavit  -  False affidavit – Costs - Unconditional and unqualified apology  - After the Report was filed in the High Court, S also realized that it had in fact misled this Court -  Nevertheless, S tried to justify the false or misleading affidavit filed in this Court - After giving the justification, S tendered an unconditional and unqualified apology through SP, proprietor of S - There was no need for the proprietor to have tendered an unconditional and unqualified apology unless there was an admission that the statement made before this Court was false or misleading - It would have been a different matter if Sciemed had tendered an unconditional and unqualified apology without tendering a justification – Costs upheld. (2016)3 PLRSC 28

Affidavit – False Affidavit  - A global search of cases pertaining to the filing of a false affidavit indicates that the number of such cases that are reported has shown an alarming increase in the last fifteen years as compared to the number of such cases prior to that - This  is illustrative of the malaise that is slowly but surely creeping in -  This 'trend' is certainly an unhealthy one that should be strongly discouraged, well before the filing of false affidavits gets to be treated as a routine and normal affair - High Court was correct in imposing costs of Rs. 10 lakhs on the petitioner for filing a false or misleading affidavit  - In our opinion, the imposition of costs, although somewhat steep, was fully justified given that the High Court also held that the contract in favour of the petitioner was awarded improperly and was of a commercial nature. (2016)3 PLRSC 28

Age proof - School Leaving Certificate  - Age proof submitted was not of the Secondary School as per the norms, but of a Higher Secondary School - In case, the copy of the Secondary School Leaving Certificate meets the requirement of the Eligibility Criteria, we fail to understand as to how does it make a difference in case the School Leaving Certificate is of the Higher Secondary School -  Secondary School Leaving Certificate is issued by the Board whereas the School Leaving Certificate of the Higher Secondary School is issued by the School -  School Leaving Certificate, is issued by the School since the pupil leaves the school - In case, a copy of the Secondary School Leaving Certificate can be accepted as proof of age, it does not even strike to common sense as to why the copy of the Higher Secondary School Leaving Certificate, duly attested, cannot be accepted as proof of age. (2016)3 PLRSC 381

Alibi -  The word alibi means "elsewhere" - Plea of alibi is not one of the General Exceptions contained in Chapter IV of IPC -  It is a rule of evidence recognized under Section 11 of the Evidence Act -  However, plea of alibi taken by the defence is required to be proved only after prosecution has proved its case against the accused – Indian Penal Code, Chapter IV - Evidence Act, Section 11.  (2016)3 PLRSC 1

Appeal  - Intra-court appeal  - In an intra-court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same - Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief - Once the learned Single Judge having seen the records and come to the conclusion that the industry was not functioning after January, 1995, there is no justification in entering a different finding without any further material before the Division Bench. (2016)3 PLRSC 38

Appeal - Second Appeal - A substantial question of law is not required to be framed if the High Court decides to dismiss the second appeal at an admission stage - Only in a case where the second appeal is admitted or is decided finally by allowing the same, a substantial question of law is required to be framed by the High Court. (2016)3 PLRSC 226

Appeal and review – Death sentence -  Supreme Court pronounced judgment on 15.05.2015 dismissing appeal under Article 136 confirming the death penalty and within six days of the dismissal of the criminal appeals, learned Sessions Judge issued the death warrants on 21.05.2015 -  This is clearly impermissible and unwarranted for various reasons - First and foremost reason is that the convicts have not exhausted their judicial and administrative remedies, which are still open to  them even if their appeals in the highest Court have failed affirming the imposition of death penalty - Those appeals were filed via the route of Article 136 of the Constitution - However, law gives such persons another chance, namely, to seek review of the orders so passed, by means of filing of review petition - It is to provided under Article 137 of the Constitution - The limitation of 30 days is prescribed for filing such review petitions - We have to emphasize at this stage that in case of convicts facing death penalty, the remedy of review has been given high procedural sanctity - Review petition in a case of death sentence shall be heard in the open court by giving an opportunity to the review petitioner to make oral submissions, unlike other review petitions which are decided by the Court by circulation in Chambers - Not only this, such a review petition is to be heard by a Bench consisting of minimum three Judges - Constitution of India, Article 136, 137.  (2016)3 PLRSC 692

Arbitration Act, 1940  - Power of the Arbitrator to award pendente lite interest when contract contains bar for grant of interest in a case covered by the Arbitration Act, 1940 -  In our opinion, it would depend upon the nature of the ouster clause in each case -  In case there is express stipulation which debars pendente lite interest, obviously, it cannot be granted by Arbitrator - The award of pendente lite interest inter alia must depend upon the overall intention of the agreement and what is expressly excluded - Thus, our answer to the reference is that if contract expressly bars award of interest pendente lite, the same cannot be awarded by the Arbitrator - Also make it clear that the bar to award interest on delayed payment by itself will not be readily inferred as express bar to award interest pendente lite by the Arbitral Tribunal, as ouster of power of Arbitrator has to be considered on various relevant aspects referred to in the decisions of this Court. Held, The decision in Madnani Construction Corporation (2010) 1 SCC 549, has followed decision in Engineers-De-Space-Age, (1996) 1 SCC 516. Same is also required to be diluted to the extent that express stipulation under contract may debar the Arbitrator from awarding interest pendente lite. Grant of pendente lite interest may depend upon several factors such as phraseology used in the agreement, clauses conferring power relating to arbitration, nature of claim and dispute referred to Arbitrator and on what items power to award interest has been taken away and for which period. (2016)3 PLRSC 493

Arbitration Act, 1996 - Limitation Act, 1963, Article 137 – Cause of action arises when the real dispute arises i.e. when one party asserts and the other party denies any right -  Cause of action in the present case is the claim of the claimant to the determination of base year for the purposes of escalation and the calculation made thereon, and the refusal of the appellant to pay as per the calculations.  (2016)3 PLRSC 348

Arbitration and Conciliation Act, 1996  - Section 11(5)  - Only if the parties fail to agree to appoint an arbitrator within 30 days from the receipt of a request made by one party to the other, then and only then, Section 11 of the Act can be invoked seeking a direction at the hands of the High Court, to appoint an Arbitrator -  Section 2(1)(a) of the Act, leaves no room for any doubt, that the term “party” expressed in Section 11(5) of the Act is referable to a party to an arbitration agreement - No such request had been made by respondent for the appointment of an arbitrator, to the appellants, for the settlement of their contractual dispute – No document was brought to notice indicating that respondent had ever approached the appellants requiring the appellants to agree to the appointment of an arbitrator, for the settlement of their monetary disputes, emerging out of their contractual relationship - Respondent approached the Indian Newspaper Society for settling the dispute - Chairman of the INS advised the parties to have their dispute amicably settled through arbitration - Since parties could not agree to settle their dispute by way of arbitration, the respondent approached the High Court under Section 11 for appointment fo arbitrator - High Court appointed a sole arbitrator -  Set aside. (2016)3 PLRSC 450

Arbitration and Conciliation Act, 1996 (26 of 1996) - Section 34, 42 - Jurisdiction of a Court to entertain application under Section 34 of the Arbitration and Conciliation Act, 1996 - Respondent resides at Latur, delivery of cotton bales was taken at Latur and the place of business of respondent was at Latur -  Cotton bales were dispatched by the appellant from Raichur supported by all bills/invoices specifically mentioning that “subject to Raichur jurisdiction” -  The dispute arose and the matter was referred to Industrial Facilitation Council, Bangalore – Parties participated in the arbitration proceedings in Bangalore without raising objection with regard to the jurisdiction of the Karnataka High Court referring the matter to arbitration or the jurisdiction of Industrial Facilitation Council to decide the dispute - Arbitration proceeding was concluded within the jurisdiction of Raichur Court -  The only forum available to respondent was to make an application under Section 34 of the Act before the Civil Court of original jurisdiction at Raichur -  Award challenged by filing an application under Section 34 of 1996 Act before the District Court at Latur, Maharashtra – Dismissed -  Exercise of jurisdiction by such court shall be against the provision of Section 42 of the Act. Held, Indisputably, the Arbitration proceeding has been conducted within the jurisdiction of Raichur court, which has jurisdiction as per Section 20 of the Code of Civil Procedure and is subordinate to the High Court of Karnataka which entertained Section 11 Application. Hence, the Award cannot be challenged before a Court subordinate to the High Court of Bombay. Exercise of jurisdiction by such court shall be against the provision of Section 42 of the Act.   (2016)3 PLRSC 603

Arithmetical mistake and Clerical mistake - An arithmetical mistake is a mistake in calculation, while a clerical mistake is a mistake of writing or typing error occurring due to accidental slip or omissions or error due to careless mistake or omission - Substituting different lands in place of the lands which have been notified by a statutory Notification under Section 10(1), 10(3) and 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 cannot and shall not be done by issuing a corrigendum unless the mandatory requirements contained in the aforementioned sections is complied with - A land holder cannot be divested from his land on the plea of clerical or arithmetical mistake liable to be corrected by issuing corrigendum - Urban Land (Ceiling and Regulation) Act, 1976, Section 10. (2016)3 PLRSC 265

Auction purchaser – Sale not set aside – Held that since the auction purchaser has already paid the full amount of sale consideration and is in possession of the property in question for more than about 8 years - For equity and good conscience,  do not intend to interfere with his possession. Held, that we cannot brush aside the fact that respondent Nos.4, 6 & 7 filed a claim petition before the Recovery Officer on 4th January, 2007 claiming their share of balance of sale proceedings after adjustment of the dues of the Central Bank which shows that the parties to the dispute have accepted the award passed by the Lok Adalat. It appears to us that the High Court did not consider the said facts and further it has escaped from the mind of the High Court that the auction purchaser has purchased the auctioned property for sale consideration of Rs.3.27 crores and 25% of the sale consideration was duly paid on 5th October, 2006 and furthermore on 19th October, 2006, the balance amount of sale consideration was duly paid by the auction purchaser. We have further noted that the sale was confirmed on 15th November, 2006. The sale certificate was also issued in favour of the auction purchaser after paying the requisite stamp duty and registration fees which, as pointed out to us on behalf of the auction purchaser, to the tune of Rs.30,73,800/-. It is also not in dispute that auction purchaser was put in possession of the property and is still in possession of the property since the sale certificate was issued and registration was made in his favour. It is submitted on behalf of the auction purchaser that he has purchased the property by availing private borrowing for the said property and he is paying nearly Rs.5 lakhs per month as interest. Therefore, in our opinion, the equity and good conscience also has to play a role in the matter in question on the given facts and after considering the conduct of the respondents in the matter. In these circumstances, we feel that it would not be proper for us at this stage to set aside the sale, as has been done by the High Court without taking into consideration all these facts. (2016)3 PLRSC 542

B

Bank guarantee  - The bank guarantee format does not provide for a trigger point for its encashment - Furnishing the bank guarantee without stipulating the situations in which the guarantee shall become encashable, will be meaningless. (2016)3 PLRSC 752

Banking -  Guarantor - Liability of -  The legislature has succinctly stated that the liability of the guarantor is co-extensive with that of the principal debtor unless it is otherwise provided by the contract - The only exception to the nature of the liability of the guarantor is provided in the Section itself, which is only if it stated explicitly to be otherwise in the Contract - It is the prerogative of the Creditor alone whether he would move against the principal debtor first or the surety, to realize the loan amount - The guarantor cannot escape from her liability as a guarantor for the debt taken by the principal debtor - Loan agreement,- There is no clause which shows that the liability of the guarantor is not co-extensive with the principal debtor -  Indian Contract Act, 1872, Section 128. (2016)3 PLRSC 542

Banking - One Time Settlement (OTS) Scheme - As per the OTS proposal restriction put on sale of the mortgaged property for a period of three years, and in case, the properties are sold within the said lock in period of three years, the same should be done with the permission of the bank and that the first respondent should share 50% of the increase in fair market value of the property, fixed at the time of sanction of the settlement – First respondent managed to enter into an agreement with the second respondent for sale of half of the mortgaged property and pursuant to that agreement, the whole amount of OTS , as per the offer made by the bank, was paid in terms of the OTS - Bank declined to settle the accounts and release the mortgage on the ground that the third party interest having been created, the bank was entitled to 50% of the fair market value - Possession of the mortgaged property has not been delivered to the first respondent and the three year lock in period has expired  - The creation of third party interest or arrangement by way of agreement for sale within the three year period is different from sale -  Admittedly, sale has not been made within the period of three years of settlement – Bank cannot rest any claim under law for the share of the increase in fair market value by way of recompense - There is nothing to be recompensed since the bank has not suffered or lost anything – Bank to release the property. (2016)3 PLRSC 879

Bar Council of India Rules, 1975  - Advocate – Duty of - It is the solemn duty of an advocate not to transgress the authority conferred him by the client - It is always better to seek appropriate instructions from the client or his authorized agent before making any concession which may, directly or remotely, affect the rightful legal right of the client - The advocate represents the client before the Court and conducts proceedings on behalf of the client. He is the only link between the Court and the client - Therefore his responsibility is onerous - He is expected to follow the instructions of his client rather than substitute his judgment. (2016)3 PLRSC 654

Bar Council of India Rules, 1975 - Advocate - An advocate under the Code expressly includes a group of advocates and a law firm whose partner or associate acts for the client. (2016)3 PLRSC 654

Bonds  - Nurses  - Execution of bonds by private hospitals and nursing homes  - Indian Nursing Council has submitted that the said system has now been abolished. (2016)3 PLRSC 223

C

Cause of action - Accrual of cause of action is a sine qua non for a suit to be filed. Cause of action is a bundle of facts which is required to be proved to grant relief to the plaintiff - Cause of action not only refers to the infringement but also the material facts on which right is founded. (2016)3 PLRSC 915

Central Excise Act, 1944 - Section 11A(1) – Depressing of sale price  - Show cause notice, that assessee had short paid the duty on its products, that is, printed glass bottles, by under-valuing the same at the time of clearance from its factory inasmuch as it did not add “additional consideration” received from C and P wherein   assessee had received 90% advance from C and 100% advance from P for the goods and it was giving 3-4% discount to the said Companies - Ssale price agreed between two competing parties may get depressed, when substantial and huge advances are periodically extended and given with the objective and purpose that the sale price paid or charged would be lowered, to set off the consideration paid by grant of advances - There should be a connect and link between the two i.e. the money advanced it should be established was a consideration paid which could form the basis for depression of sale price - Evidence and material to establish the said factual matrix has to be uncovered and brought on record to connect and link the sale price paid on paper and the “other” consideration, not gratis, but by way of interest free advances – Matter remanded to decide what is the effect of the sales made to the two companies in percentile terms, whether this had the effect of depressing the sale price -  Onus on the revenue.  (2016)3 PLRSC 101

Character/enlistment certificate – Petitioner applied for Character/enlistment certificate in her favour, which it appears is one of the requirements prescribed for registration as a contractor - District Magistrate declined  to issue the character certificate to the appellant on the solitary ground that her husband was involved in four criminal cases during the past- District Magistrate again rejected the prayer for the issuance of a character certificate on the ground that the appellant did not have any knowledge of contract works which works were being got executed by her through her son and other persons – There is no dispute that the appellant is not involved in any criminal case or activity of any objectionable kind -  District Magistrate should have simply certified her character because that was the only question which the former was called upon to examine while dealing with the request made by the appellant - The District Magistrate, however, appears to have been swayed by considerations wholly extraneous to the question whether the appellant had a good moral character – Second time, the certificate was denied on the ground that she had no experience in getting the contract works executed -  We have not been able to appreciate as to how the District Magistrate could have brought in the question of the appellant’s capability as a contractor or her experience in executing works to bear upon her good moral character -  Even when the appellant may have had no experience in getting government works executed she could still claim that she bore a good moral character. (2016)3 PLRSC 715

Civil Procedire Code, 1908 (V of 1908) - Section 20 - Copyright Act, Section 62  - Trade Marks Act, section 134 - In a case where cause of action has arisen at a place where the plaintiff is residing or where there are more than one such persons, any of them actually or voluntarily resides or carries on business or personally works for gain would oust the jurisdiction of other place where the cause of action has not arisen though at such a place, by virtue of having subordinate office, the plaintiff instituting a suit or other proceedings might be carrying on business or personally works for gain – Head office of complainant at Mumbai, Offence at Mumbai, New Delhi where subordinate office is situated shall not have jurisdiction. (2016)3 PLRSC 915

Civil Procedure Code, 1908 (V of 1908) - Section 100 - High Court has not yet admitted the matter - No substantial question of law has been formulated as it could not have been when the appeal has not been admitted - We say so, as appeal under Section 100 CPC is required to be admitted only on substantial question/questions of law -  It cannot be formal admission like an appeal under Section 96 CPC - That is the fundamental imperative - It is peremptory in character, and that makes the principle absolutely cardinal - Civil Procedure Code, 1908 (V of 1908) Section 96.  (2016)3 PLRSC 853

Civil Procedure Code, 1908 (V of 1908) - Section 100, Order XLI Rule 5(3) -  Whether the High Court without admitting the second appeal could have entertained IA  filed seeking interim relief - Solely because the Court has the jurisdiction to pass an ex parte order, under Order XLI Rule 5(3),  it does not empower it not to formulate the substantial question of law for the purpose of admission, defer the date of admission and pass an order of stay or grant an interim relief. Held, Submission of the learned senior counsel for the appellant is that Order XLI Rule 5 confers jurisdiction on the High Court while dealing with an appeal under Section 100 CPC to pass an ex parte order and such an order can be passed deferring formulation of question of law in grave situations. Be it stated, for passing an ex parte order the Court has to keep in mind the postulates provided under sub-rule (3) of Rule 5 of Order XLI. It has to be made clear that the Court for the purpose of passing an ex parte order is obligated to keep in view the language employed under Section 100 CPC. It is because formulation of substantial question of law enables the High Court to entertain an appeal and thereafter proceed to pass an order and at that juncture, needless to say, the Court has the jurisdiction to pass an interim order subject to the language employed in Order XLI Rule 5(3). It is clear as day that the High Court cannot admit a second appeal without examining whether it raises any substantial question of law for admission and thereafter, it is obliged to formulate the substantial question of law. Solely because the Court has the jurisdiction to pass an ex parte order, it does not empower it not to formulate the substantial question of law for the purpose of admission, defer the date of admission and pass an order of stay or grant an interim relief. That is not the scheme of CPC after its amendment in 1976 and that is not the tenor of precedents of this Court.    (2016)3 PLRSC 853

Civil Procedure  Code, 1908 (V of 1908) - Section 148 - Whether or not the court has the discretion to enlarge the time for doing any act prescribed by the Code or allowed by the Code under section 148  - High Court imposed the cost of Rs.25,000/- upon the appellant as a condition precedent for restoration of the execution petition -  Not deposited in time as per the order of the High Court  - High Court did not allow extention of time  -  In terms of Section 148 C.P.C. court has the discretion to extend the time - The words “not exceeding thirty days in total” have been inserted by the C.P.C. (Amendment) Act, 1999 - If the act could not be performed within thirty days for the reasons beyond the control of the parties, the time beyond maximum thirty days can be extended under Section 151 C.P.C. - What was important was whether the appellant has made out a case for extension based on which time can be extended.  (2016)3 PLRSC 373

Civil Procedure  Code, 1908 (V of 1908) - Order  7 Rule 6A   - Counter-claim filed almost two and a half years after the framing of the issues - Sub-clause (1) of Section 6A of Order VIII, provides that the cause of action in respect of which a counter claim can be filed, should accrue before the defendant has delivered his defence, namely, before the defendant has filed a written statement – Plaintiff's evidence was still being recorded by the trial court, when the counter-claim was filed - It has also not been shown, that any prejudice would be caused to the respondent-plaintiff before the trial court, if the counter-claim was to be adjudicated upon, along with the main suit -  No serious injustice or irreparable loss, would be suffered by the plaintiff. (2016)3 PLRSC 527

Civil Procedure Code, 1908 (V of 1908) - Order  9 Rule 13  - While exercising the discretion for setting aside the ex-parte decrees or condoning the delay in filing the application to set aside the ex-parte decrees, the court is competent to direct the defendants to pay a portion of the decreetal amount or the cost - While the trial court has exercised the discretion to condone the delay in filing the applications to set aside the ex-parte decrees, in our view, the trial court should not have imposed such an unreasonable and onerous condition of depositing the entire suit claim in the suits when the issues are yet to be decided on merits - While considering the revision, the High Court should have kept in view that the parties are yet to go for trial and the appellants ought to have been afforded the opportunity to contest the suits on merits. (2016)3 PLRSC 647

Civil Procedure Code, 1908 (V of 1908) - Order 18 Rule 17– Application moved that after consolidation of suits, the plaintiff in one suit should get an opportunity to cross examine the PW already examined in the other suit in which the evidence was recorded prior to consolidation and was ordered be read as the main evidence – Contention Upheld. (2016)3 PLRSC 407

Code of Criminal Procedure, 1973 - Transfer of case  - The high court has taken an exception to the remarks given by the learned trial judge and also opined about non- examination of any witness by him - Sessions Judge, while hearing the application for transfer of the case, called for remarks of the trial judge, and in such a situation, he is required to give a reply and that he has done - He is not expected to accept the allegations made as regards his conduct and more so while nothing has been brought on record to substantiate the same - High Court could not have deduced that he should have declined to conduct the trial - This kind of observation is absolute impermissible in law, for there is no acceptable reason on the part of the learned trial judge to show his disinclination –  So far as the non-examination of the witnesses is concerned, as the factual score would uncurtain, the matter had travelled to the High Court in revision assailing the order passed under Section 319 CrPC. Be that as it may, the High Court has not adverted to the issue who was seeking adjournment and what was the role of the learned trial judge - Grant of adjournment could have been dealt with by the High Court in a different manner - It has to be borne in mind that a judge who discharges his duty is bound to commit errors- The same have to be rectified - The accused has never moved the superior court seeking its intervention for speedy trial - The High Court has innovated a new kind of approach to transfer the case. (2016)3 PLRSC 18

Code of Criminal Procedure, 1973 - Section 216 - Court can change or alter the charge if there is defect or something is left out - The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record - It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC. (2016)3 PLRSC 455

Code of Criminal Procedure, 1973 - Section 216 - Court can change or alter the charge  - It is obligatory on the part of the court to see that no prejudice is caused to the accused and he is allowed to have a fair trial -  There are in-built safeguards in Section 216 CrPC - It is the duty of the trial court to bear in mind that no prejudice is caused to the accused as that has the potentiality to affect a fair trial. (2016)3 PLRSC 455

Code of Criminal Procedure, 1973 - Section 216 - It is graphic that the court can change or alter the charge if there is defect or something is left out - The test is, it must be founded on the material available on record - It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial - It can also be done at any time before pronouncement of judgment - It is not necessary to advert to each and every circumstance - If the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge - Similarly, it has the authority to alter the charge - An application was filed by the informant to add a charge under Section 406 IPC as there were allegations against the husband about the criminal breach of trust as far as her stridhan is concerned - It was, in a way, bringing to the notice of the learned Magistrate about the defect in framing of the charge - The court could have done it suo motu. (2016)3 PLRSC 455

Code of Criminal Procedure, 1973 - Section 319 – Accused not named in FIR - It is well accepted in criminal jurisprudence that F.I.R. may not contain all the details of the occurrence or even the names of all the accused - It is not expected to be an encyclopedia even of facts already known - There are varieties of crimes and by their very nature, details of some crimes can be unfolded only by a detailed and expert investigation - This is more true in crimes involving conspiracy, economic offences or cases not founded on eye witness accounts - Case fixed for evidence and prosecution had already examined five witnesses  - On the basis of evidence of prosecution witnesses recorded in the course of trial, it was urged involvement of MS and  H had emerged and such materials were also available in the statement of concerned witnesses recorded under Section 161 of Criminal Procedure Code - The fact that Police chose not to send up a suspect to face trial does not affect power of the trial court under Section 319 of the Cr.P.C. to summon such a person on account of evidence recorded during trial. (2016)3 PLRSC 849

Code of Criminal Procedure, 1973 - Section 408 (1)  - Transfer of case  - Solely because an accused has filed an application for transfer, trial judge is not required to express his disinclination - He is required under law to do his duty -  He has to perform his duty and not to succumb to the pressure put by the accused by making callous allegations - He is not expected to show unnecessary sensitivity to such allegations and recuse himself from the case - If this can be the foundation to transfer a case, it will bring anarchy in the adjudicatory process - The unscrupulous litigants will indulge themselves in court haunting - If they are allowed such room, they do not have to face the trial before a court in which they do not feel comfortable. (2016)3 PLRSC 18

Code of Criminal Procedure, 1973 - Section 408 (1) - Exercise of power by the Sessions Judge to transfer a case from one Additional Sessions Judge to any other Additional Sessions Judge in his Sessions Division after commencement of the trial - Transfer petition preferred under Section 408 CrPC before the learned Principal Sessions Judge is maintainable - The view expressed by the High Court on this score appears to be correct and hence, affirm the same. (2016)3 PLRSC 18

Code of Criminal Procedure, 1973 - Section 408 (1) - Transfer of case  - Seeking transfer at the drop of a hat is inconceivable -  An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial - The power has to be exercised cautiously and in exceptional situations, where it becomes necessary to do so to provide credibility to the trial -  There has to be a real apprehension that there would be miscarriage of justice. (2016)3 PLRSC 18

Code of Ethics - Prescribed by the Bar Council of India, in recognition of the evolution in professional and ethical standards within the legal community, provides for certain rules which contain canons of conduct and etiquette which ought to serve as general guide to the practice and profession- Advocates Act. (2016)3 PLRSC 654

Compassionate employment - Respondent was not given appointment on compassionate ground as per the policy because, as per the policy, more deserving candidates were available for giving appointment on the compassionate ground - Though the case of the respondent was considered, she could not be appointed as there were claimants who were more needy than the respondent – Central Administrative Tribunal was not right in giving the direction to consider the case of the respondent again and again, especially when the case of the respondent had been duly considered and had been rejected, in view of the fact that more deserving claimants were available at the relevant time - Respondent has no right to be appointed on compassionate ground on the death of her husband if there is somebody more needy than the respondent. (2016)3 PLRSC 197

Complaint  - During pendency of the complaint, the Act (FERA) was repealed   - The fact that the adjudicating officer chose to drop the proceedings against the appellant herein does not absolve the appellant of the criminal liability incurred by him by virtue of the operation of Section 40 read with Section 56 of the Act - The offence under Section 56 read with Section 40 of the A renewal of ct is an independent offence - FERA. Held, If the factual allegations contained in the charge are to be proved eventually at the trial of the criminal case, the appellant is still liable for the punishment notwithstanding the fact that the presence of the appellant was required by the adjudicating officer in connection with an enquiry into certain alleged violations of the various provisions of the Act, but at a subsequent stage the adjudicating officer opined that there was either insufficient or no material to proceed against the appellant for the alleged violations of the Act, is immaterial.               (2016)3 PLRSC 898

Complaint - Quashed on the ground that FERA Act repealed - Appeal pending – Appeal  against the conclusion of the adjudicating officer that the proceedings against the appellant herein for the alleged violation of the various provisions of the FERA Act are required to be dropped has not even attained finality - Admittedly, such an order of the adjudicating officer confirmed by the statutory appellate authority is pending consideration in an appeal before the High Court - Though, in our opinion, the result of such an appeal is immaterial for determining the culpability of the appellant for the alleged violation of Section 40 read with Section 56 (of the FERA Act) , we must record that the submission made on behalf of the appellant in this regard itself is inherently untenable. (2016)3 PLRSC 898

Confession – When a person is in police custody, the confession made by him even to a third person, that is other than a police officer, shall also become inadmissible - This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such - If he is a police officer and  confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence - Indian Evidence Act,  1872,  Section 25.       Held, The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practicing oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and  confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. (2016)3 PLRSC 670

Constitution of India, Art.  14, 21, 32, 141, 142  - Guidelines and directions can be issued by the Supreme Court including a command for compliance of guidelines and standard operating procedure issued by Government of India, Ministry of Road Transport and Highways, till such time as the legislature steps in to substitute them by proper legislation -  This Court can issue such directions under Article 32 read with Article 142 to implement and enforce the guidelines which are necessary for protection of rights under Article 21 read with Article 14 of the Constitution of India so as to provide immediate help to the victims of the accident and at the same time to provide protection to Good Samaritans. The guidelines will have the force of law under Article 141 - By virtue of Article 144, it is the duty of all authorities – judicial and civil – in the territory of India to act in aid of this Court by implementing them - Constitution of India, Article 14, 21. (2016)3 PLRSC 823

Constitution of India, Art.  20(2) -  Sea Customs Act – Exoneration in related adjudication proceedings and the effect thereof on criminal proceedings  - Plea that the finding of the Collector of Customs that the accused are not proved to be guilty operated as estoppel in the criminal case against the accused - Adjudicating proceedings were initiated pursuant to the show cause notice and Order was passed by the Additional Commissioner of Customs imposing penalty on the accused - Commissioner of Customs (Appeal) set aside the penalty - Petition under Section 482 of the Criminal Procedure Code filed seeking quashing - Exoneration of the respondent in the adjudication proceedings was the basis for petition under Section 482 Cr.P.C. – Accused was declared “proclaimed offender”  - Accused was declared a proclaimed offender and had not participated in any of the proceedings personally - In the circumstances no weightage could be given to copies of the passport submitted in support of the assertion that he had not visited India - Statement of VS did allege the involvement of the respondent - In law, if such statement is otherwise admissible and reliable, conviction can lawfully rest on such material – Quashing order passed by High Court set aside. (2016)3 PLRSC 359

Constitution of India, Art.  21  - Right to life is enshrined under Article 21 includes right to safety of persons while travelling on the road and the immediate medical assistance as a necessary corollary is required to be provided and also adequate legal protection and prevention from harassment to good Samaritans. (2016)3 PLRSC 823

Constitution of India, Art.  21 - 'human dignity' - Article 21 has its traces in the dignity of human being. It has been recognized as part of Article 21  -Once we recognize this aspect of dignity of human being, it does not end with the confirmation of death sentence, but goes beyond and remains valid till such a convict meets his/her destiny - Therefore, the process/procedure from confirmation of death sentence by the highest Court till the execution of the said sentence, the convict is to be treated with human dignity to the extent which is reasonable and permissible in law – Death Sentence. Held, This right to human dignity has many elements. First and foremost, human dignity is the dignity of each human being 'as a human being'. Another element, which needs to be highlighted, in the context of the present case, is that human dignity is infringed if a person's life, physical or mental welfare is armed. It is in this sense torture, humiliation, forced labour, etc. all infringe on human dignity. It is in this context many rights of the accused derive from his dignity as a human being. These may include the presumption that every person is innocent until proven guilty; the right of the accused to a fair trial as well as speedy trial; right of legal aid, all part of human dignity. Even after conviction, when a person is spending prison life, allowing humane conditions in jail is part of human dignity. Prisons reforms or Jail reforms measures to make convicts a reformed person so that they are able to lead normal life and assimilate in the society, after serving the jail term, are motivated by human dignity jurisprudence. Further Held, In this country,  however, since the death penalty has been held to be constitutionally valid (See Bachan Singh v. State of Punjab 9 (1980) 2 SCC 684), we do not have to travel to that extent. At the same time, even if death sentence is to be awarded, it has to be in accord with due dignity. In fact, this element of human dignity is well recognized in choosing the mode of execution of death sentence with general consensus that method of execution of death sentence should be such which is certain, humane, quick and decent. (2016)3 PLRSC 692

Constitution of India, Art.  21 - Lays down that nobody shall be deprived of his life and liberty except according to the procedure established by law - It now stands settled that the procedure established by law has to be 'due procedure'  - By judicial interpretation, this Court has read the principle of reasonableness into the said procedure contemplated by Article 21, holding that it must be 'right and just and fair' and not arbitrary, fanciful or oppressive -  Even as per the statute book, this procedure does not culminate with the dismissal of appeals of the convicts by the final Court - No doubt, when an accused is tried of an offence by a competent court of law and is imposed such death penalty and the said death penalty is upheld by the highest Court, the procedure that is established by law has been followed up to this stage - However, in the statutory framework, further procedural safeguards in the form of judicial review as well as mercy petitions are yet to be traversed - This would also be covered by the expression 'procedure established by law' occurring in Article 21 - Therefore, till the time limitation period for filing the review petition and thereafter reasonable time for filing the mercy petition has not lapsed, issuing of death warrants would be violative of Article 21 - Death Sentence.  (2016)3 PLRSC 692

Constitution of India, Art.  21, 72, 136, 137, 161  Death Sentence - Supreme Court pronounced judgment on 15.05.2015 dismissing appeal under Article 136 confirming the death penalty and within six days of the dismissal of the criminal appeals, learned Sessions Judge issued the death warrants on 21.05.2015 -  This is clearly impermissible and unwarranted for various reasons – (I) First and foremost reason is that the convicts have not exhausted their judicial and administrative remedies, which are still open to  them even if their appeals in the highest Court have failed affirming the imposition of death penalty. Those appeals were filed via the route of Article 136 of the Constitution. However, law gives such persons another chance, namely, to seek review of the orders so passed, by means of filing of review petition. It is to provided under Article 137 of the Constitution. (II) That apart, right to file mercy petitions to the Governor of the State as well as to the President of India also remains intact. (III) Article 21 of the Constitution lays down that nobody shall be deprived of his life and liberty except according to the procedure established by law. After long judicial debate, it now stands settled that the procedure established by law has to be 'due procedure'. (IV) There is another facet of right to life enshrined in Article 21 of the Constitution which needs to be highlighted at this juncture, namely, 'human dignity'. Article 21 has its traces in the dignity of human being. It has been recognized as part of Article 21 of the Constitution. (2016)3 PLRSC 692

Constitution of India, Art.  32, 226 - Having invoked a constitutional remedy before the High Court under Article 226 of the Constitution of India, the petitioner cannot, under Law, file another petition under Article 32 of the Constitution of India on identical set of facts for identical reliefs -Writ petition is dismissed with costs of Rs.1,00,000/- . (2016)3 PLRSC 481

Constitution of India, Art.  72,  Article 161  - Right to file mercy petitions to the Governor of the State as well as to the President of India  - These remedies are also of substance and not mere formalities - Power to pardon is a part of the constitutional scheme which has been reposed by the people through the Constitution in the Head of the State, and enjoys high status - In exercise of their powers, the President or the Governor, as the case may be, may examine the evidence afresh and this exercise of power is clearly independent of the judiciary - It is clarified that while exercising such a power, the Executive is not sitting as a Court of Appeal - Rather power to grant remission of sentence is an act of grace, humanity in appropriate cases, i.e. distinct, absolute and unfettered in nature - This is again a constitutional remedy provided to the convicts of death sentence and they have a right to avail this remedy which cannot be snatched by executing the death sentence before even giving such convicts a chance or opportunity to avail the same - For this purpose, State has to wait for reasonable period, even after such convicts fail in the review petition, if they so file. (2016)3 PLRSC 692

Constitution of India, Art. 136, 137 – Appeal and review – Death sentence -  Supreme Court pronounced judgment on 15.05.2015 dismissing appeal under Article 136 confirming the death penalty and within six days of the dismissal of the criminal appeals, learned Sessions Judge issued the death warrants on 21.05.2015 -  This is clearly impermissible and unwarranted for various reasons - First and foremost reason is that the convicts have not exhausted their judicial and administrative remedies, which are still open to  them even if their appeals in the highest Court have failed affirming the imposition of death penalty - Those appeals were filed via the route of Article 136 of the Constitution - However, law gives such persons another chance, namely, to seek review of the orders so passed, by means of filing of review petition - It is to provided under Article 137 of the Constitution - The limitation of 30 days is prescribed for filing such review petitions - We have to emphasize at this stage that in case of convicts facing death penalty, the remedy of review has been given high procedural sanctity - Review petition in a case of death sentence shall be heard in the open court by giving an opportunity to the review petitioner to make oral submissions, unlike other review petitions which are decided by the Court by circulation in Chambers - Not only this, such a review petition is to be heard by a Bench consisting of minimum three Judges . (2016)3 PLRSC 692

Constitution of India, Art. 226 and 227 - Writ of Certiorari under Article 226 though directed against the orders of a inferior court would be distinct and separate from the challenge to an order of an inferior court under Article 227 of the Constitution - The supervisory jurisdiction comes into play in the latter case and it is only when the scope and ambit of the remedy sought for does not fall in purview of the scope of supervisory jurisdiction under Article 227, the jurisdiction of the Court under Article 226 could be invoked. Held,  In the present case, what was challenged by the members of the Society was an order passed by the Registrar and the Revisional Authority under the provisions of the Act and the Rules framed thereunder. The prayer was to set aside the orders passed by the authorities below. Even if the said petitions(s) were styled as a petition under Article 226, the content and the prayers thereunder being ones requiring exercise of supervisory jurisdiction only, could be treated as petitions filed under Article 227 of the Constitution only. (2016)3 PLRSC 654

Constitution of India, Art. 227 – Concession made by counsel - Court ought not to have issued the impugned directions merely because a request was made by the learned counsel appearing for the respondents -  The same would hold true even if a concession was made by the counsel for the appellant -  The Court, while, exercising its powers under Article 227 of the Constitution of India, ought to have confined itself to the subject matter and the issues raised by parties in the Writ Petition - The digression of or expansion of the supervisory jurisdiction under Article 227 of the Constitution of India, would open precarious floodgates of litigation should the limitation on the supervisory jurisdiction not be observed mindfully - If for any reason, the Writ Court perceived the oral request made by the respondents to have justified the ends of justice and desired to accept the concession so made by the counsel for appellant-Society, the said request not being the subject matter of the Writ Petition required the Court to query whether the counsel for the appellant-Society has been authorized to make such a statement by the appellant-Society or whether any such resolution has been passed by the appellant-Society giving concession in matters of this nature - Since the required caution was not exercised by the learned Judges of the Writ Court, the directions issued by the Writ Court suffer from infirmity and hence require to be set aside – Advocate – Concession – Duty of court.  (2016)3 PLRSC 654

Constitution of India, Art. 246 (2) - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 S. 35 – If we accept the legal submissions made on behalf of the Banks to hold that the provisions of SARFAESI Act override the provisions of the various Rent Control Acts to allow a Bank to evict a tenant from the tenanted premise, which has become a secured asset of the Bank after the default on loan by the landlord and dispense with the procedure laid down under the provisions of the various Rent Control Acts  - Then the legislative powers of the state legislatures are denuded which would amount to subverting the law enacted by the State Legislature-  It would not only tantamount to violation of rule of law, but would also render a valid Rent Control statute enacted by the State Legislature in exercise of its legislative power under Article 246 (2) of the Constitution of India useless and nugatory  - Constitution of India envisages a federal feature, which has been held to be a basic feature of the Constitution. (2016)3 PLRSC 57

Consumer Protection Act, 1986  - Second complaint to the District Forum is maintainable when the first complaint was dismissed for default or non-prosecution. (2016)3 PLRSC 200

Contempt  - We are conscious of the fact that three persons are under confinement for the last fifteen months - This court was virtually compelled to do so, going by the stubborn attitude of the contemnors in taking the orders for granted, as if those orders were only on papers and were not meant to be complied with -  It is only when the Court felt that unless some drastic action is taken there will be no desired effect, that this extreme step was taken - However, this step was taken in good faith to uphold the rule of law and to ensure that dignity of this Court is maintained and there is faithful compliance with its directions - Rule of law -  Sahara Case. (2016)3 PLRSC 752

Contractual rate of interest - The MRTP Commission has clearly erred in interfering with the contractual rate of interest in absence of any finding against the actions and orders of the appellant -  Without returning a finding that there was any unfair trade practice or any restrictive/monopolistic trade practice pursuant to inquiry under the provisions of the Act, the Commission clearly erred in compensating the respondent with a higher rate of interest - Monopolies and Restrictive Trade Practices Act, 1969. (2016)3 PLRSC 954

Contributory and Composite negligence -  Difference between - In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons.               (2016)3 PLRSC 609

Copyright Act, Section 62  - Trade Marks Act, section 134 -  It was also submitted that as the bulk of litigation of such a nature is filed at Delhi and lawyers available at Delhi are having expertise in the matter, as such it would be convenient to the parties to contest the suit at Delhi - Such aspects are irrelevant for deciding the territorial jurisdiction - It is not the convenience of the lawyers or their expertise which makes out the territorial jurisdiction. (2016)3 PLRSC 915

Copyright Act, Section 62  - Trade Marks Act, section 134 - In a case where cause of action has arisen at a place where the plaintiff is residing or where there are more than one such persons, any of them actually or voluntarily resides or carries on business or personally works for gain would oust the jurisdiction of other place where the cause of action has not arisen though at such a place, by virtue of having subordinate office, the plaintiff instituting a suit or other proceedings might be carrying on business or personally works for gain – Head office of complainant at Mumbai, Offence at Mumbai, New Delhi where subordinate office is situated shall not have jurisdiction - CPC Section 20. Held,  The intendment of the aforesaid provisions inserted in the Copyright Act and the Trade Marks Act is to provide a forum to the plaintiff where he is residing, carrying on business or personally works for gain. The object is to ensure that the plaintiff is not deterred from instituting infringement proceedings “because the court in which proceedings are to be instituted is at a considerable distance from the place of their ordinary residence”. The impediment created to the plaintiff by section 20 C.P.C. of going to a place where it was not having ordinary residence or principal place of business was sought to be removed by virtue of the aforesaid provisions of the Copyright Act and the Trade Marks Act. Where the Corporation is having ordinary residence/principal place of business and cause of action has also arisen at that place, it has to institute a suit at the said place and not at other places. The provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act never intended to operate in the field where the plaintiff is having its principal place of business at a particular place and the cause of action has also arisen at that place so as to enable it to file a suit at a distant place where its subordinate office is situated though at such place no cause of action has arisen. Such interpretation would cause great harm and would be juxtaposed to the very legislative intendment of the provisions so enacted. Held further, There is no doubt about it that the words used in section 62 of the Copyright Act and section 134 of the Trade Marks Act, ‘notwithstanding anything contained in CPC or any other law for the time being in force’, emphasise that the requirement of section 20 of the CPC would not have to be complied with by the plaintiff if he resides or carries on business in the local limits of the court where he has filed the suit but, in our view, at the same time, as the provision providing for an additional forum, cannot be interpreted in the manner that it has authorised the plaintiff to institute a suit at a different place other than the place where he is ordinarily residing or having principal office and incidentally where the cause of action wholly or in part has also arisen. The impugned judgments, in our considered view, do not take away the additional forum and fundamental basis of conferring the right and advantage to the authors of the Copyright Act and the Trade Marks Act provided under the aforesaid provisions. Held further, if they were residing or carrying on business or personally worked for gain already at such place, where cause of action has arisen, wholly or in part, the said provisions have not provided additional remedy to them to file a suit at a different place. The said provisions never intended to operate in that field. The operation of the provisions was limited and their objective was clearly to enable the plaintiff to file a suit at the place where he is ordinarily residing or carrying on business etc., as enumerated above, not to go away from such places. The Legislature has never intended that the plaintiff should not institute the suit where he ordinarily resides or at its Head Office or registered office or where he otherwise carries on business or personally works for gain where the cause of action too has arisen and should drag the defendant to a subordinate office or other place of business which is at a far distant place under the guise of the fact that the plaintiff/corporation is carrying on business through branch or otherwise at such other place also. (2016)3 PLRSC 915

Criminal complaint  - Amendment  - Amendment in a criminal complaint on the premise that the amendment was made prior to taking cognizance of the offence – On date of allowing amendment application cognizance of case was not taken –  Before examination of the complainant, the Court was yet to make up the mind whether to take cognizance of the offence or not - It is wrong to contend that the Magistrate has taken cognizance of the case even on 18.5.2007 when the Magistrate has recorded the statement of complainant–respondent in part and even when the Magistrate has not applied his judicial mind - Even though the order dated 18.05.2007 reads “cognizance taken under Section 200 Cr.P.C.”; the same is not grounded in reality and actual cognizance was taken only later. (2016)3 PLRSC 883

Criminal complaint  - Amendment  - It is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints – Criminal Procedure Code. (2016)3 PLRSC 883

Criminal complaint  - Amendment  - That easily curable legal infirmity could be cured by means of a formal application for amendment - If the amendment sought to be made relates to a simple infirmity which is curable by means of a formal amendment and by allowing such amendment, no prejudice could be caused to the other side, notwithstanding the fact that there is no enabling provision in the Code for entertaining such amendment, the Court may permit such an amendment to be made - On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected by a formal amendment or if there is likelihood of prejudice to the other side, then the Court shall not allow such amendment in the complaint. Held,  In the instant case, the amendment application was filed on 24.05.2007 to carry out the amendment by adding paras 11(a) and 11 (b). Though, the proposed amendment was not a formal amendment, but a substantial one, the Magistrate allowed the amendment application mainly on the ground that no cognizance was taken of the complaint before the disposal of amendment application. Firstly, Magistrate was yet to apply the judicial mind to the contents of the complaint and had not taken cognizance of the matter. Secondly, since summons was yet to be ordered to be issued to the accused, no prejudice would be caused to the accused. Thirdly, the amendment did not change the original nature of the complaint being one for defamation. Fourthly, the publication of poem ‘Khalnayakaru’ being in the nature of subsequent event created a new cause of action in favour of the respondent which could have been prosecuted by the respondent by filing a separate complaint and therefore to avoid multiplicity of proceedings, the trial court allowed the amendment application. Considering these factors which weighed in the mind of the courts below, in our view, the High Court rightly declined to interfere with the order passed by the Magistrate allowing the amendment application and the impugned order does not suffer from any serious infirmity warranting interference in exercise of jurisdiction under Article 136 of the Constitution of India. (2016)3 PLRSC 883

Criminal Procedure Code, 1973 - Criminal complaint  - Amendment  - It is true that there is no specific provision in the Code to amend either a complaint or a petition filed under the provisions of the Code, but the Courts have held that the petitions seeking such amendment to correct curable infirmities can be allowed even in respect of complaints. (2016)3 PLRSC 883

Criminal Procedure Code, 1973 Section  36  - Power of State Police Chief/Director General of Police to appoint a superior police officer to investigate a crime case registered outside the territorial jurisdiction of such officer -   Power of the State Police Chief would be amenable to the judicial process and  it can always be subjected to challenge on grounds of malafide or as being without justification and reasonable cause. (2016)3 PLRSC 422

Criminal Procedure Code, 1973 Section  36  - Whether the State Police Chief/Director General of Police is empowered to appoint a superior police officer to investigate a crime case registered outside the territorial jurisdiction of such officer -  Section 36 Cr.P.C, does not in any way, debar the exercise of powers by the State Police Chief to appoint any superior officer who, in his opinion, would be competent and fit to investigate a particular case keeping in view the circumstances thereof -  Section 36 Cr.P.C does not fetter the jurisdiction of the State Police Chief to pass such an order based on his satisfaction - It is the satisfaction of the State Police Chief, in the light of the facts of a given case, that would be determinative of the appointment to be made in which situation the limits of jurisdiction will not act as fetter or come in the way of exercise of such jurisdiction by the superior officer so appointed - Such an appointment would not be hedged by the limitations imposed by Section 36 Cr.P.C. - Kerala Police Act, Section 18. (2016)3 PLRSC 422

 

Criminal Procedure Code, 1973 Section 200  -  Contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any -  Then normally three courses are available to the Magistrate - The Magistrate can either issue summons to the accused or order an inquiry under Section 202 Cr.P.C. or dismiss the complaint under Section 203 Cr.P.C. - Upon consideration of the statement of complainant and the material adduced at that stage if the Magistrate is satisfied that there are sufficient grounds to proceed, he can proceed to issue process under Section 204 Cr.P.C. (2016)3 PLRSC 883

Criminal Procedure Code, 1973 Section 200  - Cognizance  - A Magistrate takes cognizance of an offence when he decides to proceed against the person accused of having committed that offence and not at the time when the Magistrate is just informed either by complainant by filing the complaint or by the police report about the commission of an offence. (2016)3 PLRSC 883

Criminal Procedure Code, 1973 Section 200  - Cognizance  - Magistrate is not bound to take cognizance of an offence merely because a complaint has been filed before him when in fact the complaint does not disclose a cause of action - Section 200 Cr.P.C. clearly suggests that for taking cognizance of an offence on complaint, the Court shall examine the complainant upon oath - The object of examination of the complainant is to find out whether the complaint is justifiable or is vexatious - Merely because the complainant was examined that does not mean that the Magistrate has taken cognizance of the offence - Taking cognizance of an offence means the Magistrate must have judicially applied the mind to the contents of the complaint and indicates that Magistrate takes judicial notice of an offence - Mere presentation of the complaint and receipt of the same in the court does not mean that the Magistrate has taken cognizance of the offence. (2016)3 PLRSC 883

Criminal Procedure Code, 1973 Section 202  - Contemplates ‘postponement of issue of process’ -  It provides that the Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance may, if he thinks fit, postpones the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself, or have an inquiry made by any Magistrate subordinate to him, or an investigation made by a police officer, or by some other person for the purpose of deciding whether or not there is sufficient ground for proceeding -  If the Magistrate finds no sufficient ground for proceeding, he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 Cr.P.C.  - A Magistrate takes cognizance of an offence when he decides to proceed against the person accused of having committed that offence and not at the time when the Magistrate is just informed either by complainant by filing the complaint or by the police report about the commission of an offence. (2016)3 PLRSC 883

Criminal Procedure Code, 1973 Section 304 Part II IPC read with Section 149 IPC - Sentence – Quantum - Question of sentence is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. Law courts have been consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment - While it is true that sentence disproportionately severe should not be passed that does not clothe the court with an option to award the sentence manifestly inadequate - Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime - As far as the award of compensation is concerned, particularly in the case of homicidal death, monetary benefits cannot be equated with the life of a person and the society’s cry for justice - Object is just to mitigate hardship that is caused to the deceased - Fine amount of Rs.25,000/- imposed on each of the accused is increased to Rs.1,25,000/- each. Held, Considering the facts of the present case as submitted by the learned counsel for the respondents two accused namely Raj and Narender were the students at the time of the incident while Manphool has crossed the age of 72 years. The occurrence was in the year 1993 and more than 22 years have elapsed from the date of the incident. For the conviction under Section 304 Part II IPC read with Section 149 IPC reduction of sentence from seven years to the period already undergone, though, appears to be inadequate, at this distant point of time, we are not inclined to interfere with the exercise of discretion by the High Court in reducing the sentence of imprisonment from seven years to the period already undergone by each of the accused. As far as the award of compensation is concerned, particularly in the case of homicidal death, monetary benefits cannot be equated with the life of a person and the society’s cry for justice. Object is just to mitigate hardship that is caused to the deceased. Fine amount of Rs.25,000/- imposed on each of the accused is increased to Rs.1,25,000/- each. (2016)3 PLRSC 909

Criminal Procedure Code, 1973 Section 313 – Accused in their replies made under Section 313 Cr.P.C. have not denied their presence in the occurrence  - Appellants-accused  belong to different villages - Their names are found mentioned with their residential village in the complaint which was lodged at the earliest point in time -  PWs have testified about the participation of both the above accused in the occurrence and have identified them also -  Nothing is put in the cross-examination of the prosecution witnesses either denying their presence or absence of any role played by them in the assembly -  Not even a suggestion is made in this regard - It is also relevant to point out that these accused in their replies made under Section 313 Cr.P.C. have not denied their presence in the occurrence -  Presence in the occurrence place is established – Criminal Trial. (2016)3 PLRSC 815

Criminal Procedure Code, 1973 Section 340  - Expert evidence and Witness of Fact - Expert evidence needs to be given a closer scrutiny and requires a different approach while initiating proceedings under Section 340 of CrPC-  After all, it is an opinion given by an expert and a professional and that too especially when the expert himself has lodged a caveat regarding his inability to form a definite opinion without the required material - The duty of an expert is to furnish the court his opinion and the reasons for his opinion along with all the materials - It is for the court thereafter to see whether the basis of the opinion is correct and proper and then form its own conclusion - But, that is not the case in respect of a witness of facts - Facts are facts and they remain and have to remain as such forever - The witness of facts does not give his opinion on facts; but presents the facts as such - However, the expert gives an opinion on what he has tested or on what has been subjected to any process of scrutiny - The inference drawn thereafter is still an opinion based on his knowledge -  In case, subsequently, he comes across some authentic material which may suggest a different opinion, he must address the same, lest he should be branded as intellectually dishonest -  Objective approach and openness to truth actually form the basis of any expert opinion. (2016)3 PLRSC 41

Criminal Procedure Code, 1973 Section 340 -  Section 340 prior to amendment in 1973, was Section 479-A in the 1898 Code and it was mandatory under the pre-amended provision to record a finding after the preliminary inquiry regarding the commission of offence -  Whereas in the 1973 Code, the expression 'shall' has been substituted by 'may' meaning thereby that under 1973 Code, it is not mandatory that the court should record a finding - What is now required is only recording the finding of the preliminary inquiry which is meant only to form an opinion of the court, and that too, opinion on an offence 'which appears to have been committed', as to whether the same should be duly inquired into - Impugned order is not liable to be quashed on the only ground that there is no finding recorded by the court on the commission of the offence.  (2016)3 PLRSC 41

Criminal Procedure Code, 1973 Section 340 – Expert - Merely because an expert has tendered an opinion while also furnishing the basis of the opinion and that too without being conclusive and definite, it cannot be said that he has committed perjury so as to help somebody - And, mere rejection of the expert evidence by itself may not also warrant initiation of proceedings under Section 340 of CrPC. Held, Appellant has all through been consistent that as an expert, a definite opinion in the case could be given only if the suspected firearm is available for examination.  It is nobody's case that scientifically an expert can give a definite opinion by only examining the cartridges as to whether they have been fired from the same firearm.  It was the trial court which insisted for an opinion without the presence of the firearm, and in that context only, the appellant gave the non-specific and indefinite opinion.   An expert, in such a situation, could not probably have given a different opinion.  We fail to understand how the stand taken by the appellant, as above, attracts the offence of perjury.Held further,  It is significant to note that the appellant's opinion that the cartridges appeared to have been fired from different firearms was based on the court's insistence to give the opinion without examining the firearm. In other words, it was not even his voluntary, let alone deliberate deposition, before the court. Therefore, it is unjust, if not unfair, to attribute any motive to the appellant that there was a somersault from his original stand in the written opinion. As a matter of fact, even in the written opinion, appellant has clearly stated that a definite opinion in such a situation could be formed only with the examination of the suspected firearm, which we have already extracted in the beginning. Thus and therefore, there is no somersault or shift in the stand taken by the appellant in the oral examination before court. (2016)3 PLRSC 41

Criminal Trial -  Co-accused was acquitted of the charges – Plea  hence the benefit of the same be also extended to the appellant - Negated  -  Eevidence on record in no uncertain terms proves that it was the appellant who was the aggressor and hit the deceased - When the evidence directly attributes the appellant for commission of the act then we fail to appreciate as to how and on what basis we can ignore this material evidence duly proved by the eyewitnesses - Such was not the case so far as co-accused is concerned - The prosecution witnesses too did not speak against the co-accused and hence he was given the benefit of doubt. (2016)3 PLRSC 752

Criminal Trial  - Cr.P.C., Section 313 – Accused in their replies made under Section 313 Cr.P.C. have not denied their presence in the occurrence  - Appellants-accused  belong to different villages - Their names are found mentioned with their residential village in the complaint which was lodged at the earliest point in time -  PWs have testified about the participation of both the above accused in the occurrence and have identified them also -  Nothing is put in the cross-examination of the prosecution witnesses either denying their presence or absence of any role played by them in the assembly -  Not even a suggestion is made in this regard - It is also relevant to point out that these accused in their replies made under Section 313 Cr.P.C. have not denied their presence in the occurrence -  Presence in the occurrence place is established. (2016)3 PLRSC 815

Criminal Trial -  Lack of firearm by patrolling team - All forest officers were deployed on patrolling duty to keep a check on the then increasing forest offences -  Incident, like in the instant case, could reasonably be anticipated -  Under such circumstances, they should have been armed with weapons atleast for their own safety -  As per record, when the incident occurred all the forest officers were found to be without weapons -  Cannot be believed that the forest officers on patrolling duty were without any weapon - High Court has erred in observing that the Forest Department being poorly equipped failed to provide weapons to meet the situations, like in the instant case. (2016)3 PLRSC 202

Criminal Trial  - Non-recovery  - Non-recovery of the weapon used by the accused appellants and recovery of the blood stained shirt after six days of the date of the incident -  However, merely on the basis of these circumstances the entire case of the prosecution cannot be brushed aside when it has been proved by medical evidence corroborated by testimonies of the prosecution witnesses that the deceased died a homicidal death - When there is ample unimpeachable ocular evidence and the same has received corroboration from medical evidence, non-recovery of blood stained clothes or even the murder weapon does not affect the prosecution case . Manjit Singh and Anr. v. State of Punjab and Anr. ***, (2013) 12 SCC 746, relied. (2016)3 PLRSC 588

Criminal Trial -  Suspicious circumstances - Instead of confronting with the forest officers, who were on patrolling duty in jeep, the accused  would have tried to conceal their presence either by hiding themselves or by running away -  The forest officers, including the driver of the jeep, were 10 in number and on the other hand, accused  were 4 -  Difficult to believe that the forest officers made no frantic efforts to nab the culprits when they allegedly assaulted them - The forest officers could have easily apprehended the culprits had they tried, as they outnumbered them – Same was not done and have ebenshown to have been nabbed form their homes after 8 days – Suspicious circumstances. (2016)3 PLRSC 202

Criminal Trial - Acquittal -  Concurrent finding of acquittal - The Additional Sessions Judge was right in granting him benefit of doubt - The view which favours the accused/appellant has to be considered and we discard the opposite view which indicates his guilt - We are also of the view that the High Court should not have interfered with the decision taken by the Additional Session Judge, as the judgment passed was not manifestly illegal, perverse, and did not cause miscarriage of justice - In absence of any manifest illegality, perversity and miscarriage of justice, High Court would not be justified interfering with the concurrent finding of acquittal of the accused merely because on re-appreciation of evidence it found the testimony of PWs to be reliable whereas the trial Court had taken an opposite view. (2016)3 PLRSC 562

Criminal Trial - Delay in recording of Statements of alleged eye witnesses - Were recorded after 3 days of the occurrence - No explanation is forthcoming as to why they are not examined for 3 days - It is also not known as to how the police came to know that these witnesses saw the occurrence - The delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence - Suggests that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced - PW in view of their unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses -  No corroboration of their evidence from any other independent source either -  Find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants -  Case against the appellants has not been proved beyond reasonable doubt. (2016)3 PLRSC 414

Criminal trial – Delay of 8 days on the part of the investigating agency to make arrest  - All the accused were arrested on 05.07.1995 from their home  - Prosecution has failed to explain the delay of 8 days on the part of the investigating agency to make arrest of all the accused-appellants, when the incident occurred on 27.06.1995 and allegedly PW-8  in his statement under Section 161 of Cr.P.C. had already revealed the identity of all the culprits involved in the incident -  Prosecution tried to explain the delay in making arrest by pressing upon the ground that the accused  were absconding - If they were really absconding, then they should have remained absconding -  Their arrest from their home casts a shadow of doubt on the prosecution story rendering the same to be concocted and dubious. (2016)3 PLRSC 202

Criminal Trial - Eye witness  - Inconsistency of statements - Inconsistency with the statement given by P.W. in the F.I.R and the statement given in the Court -  Do not find this to be fatal to the prosecution case - Cannot rule out the possibility of post incident trauma and shock which might have been caused to the injured eye witness -In such a situation one cannot expect the witness to depose about every detail with accuracy -  Testimony of an injured eye witness has to be given much credence - The testimonies of the prosecution witnesses have been fully corroborated by the medical reports of the doctors who examined the deceased and the injured witness - Therefore, we hold that the testimonies of the prosecution witnesses are fully reliable and there has been no improvement made.  Held, that when other evidence, such as medical evidence, supports the prosecution’s case, the difference in what is stated in the F.I.R. and in Court as regards the weapon of offence is a very insignificant contradiction, Dharmendrasinh alias Mansing Ratansinh v. State of Gujarat, (2002) 4 SCC 679, relied.  (2016)3 PLRSC 588

Criminal Trial - FIR – Delay in lodging - Occurrence had taken place at about 2.00 p.m. on 9.10.1983 and the complaint had been lodged at about 6.15 p.m. on the same day, on which the case came to be registered -  As mentioned in the FIR, the police station was situated at a distance of 54 kms. from the occurrence place -  In such circumstances there is no delay in lodging the complaint – Criminal Trial. (2016)3 PLRSC 815

Criminal Trial – High court has observed that when the accused-appellants started assaulting the forest officers, none of the officers, who were unarmed, dared to go near the culprits with a view to catch them, thus, placing the accused  in a dominating position - On the other hand, it has further observed that the accused-appellants had dropped the said wooden log to make their bullock cart light in weight with a view to move swiftly -  This Court finds the aforesaid reasons assigned by the High Court to be incorrect - Once the accused-appellants were in a dominating position, none of the forest officers could go near them for the purpose of nabbing them. Thus, there can be no justification for leaving behind the said wooden log - They could have easily carried it away with them, if they had the intention of doing so - The prosecution has failed to explain the reason behind the accused  not taking away the said wooden log with them. (2016)3 PLRSC 202

Criminal Trial – Interested witnesses  -The ground pleaded before us by the counsel for the accused appellant, that the testimonies of P.W. should not have been considered, as they were interested witnesses - Holds no teeth - Testimonies of interested witnesses are of great importance and weightage -  No man would be willing to spare the real culprit and frame an innocent person. This view has been supplemented by the decision of this Court in Mohd. Ishaque v. State of West Bengal,3 (2013) 14 SCC 581. (2016)3 PLRSC 562

Criminal Trial - Maharashtra Control of Organised Crime Act, 1999, Section 3  - The High Court was, therefore, right in holding that Section 3 of the MCOCA could not be invoked only on the basis of the previous charge sheets for Section 3 would come into play only if the respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA - Offences which the respondents are alleged to have committed after the promulgation of MCOCA were not proved against them -  Commission of offences prior to the enactment of MCOCA does not by itself constitute an offence under MCOCA . Held, Registration of cases, filing of charge sheets and taking of cognizance by the competent court in relation to the offence alleged to have been committed by the respondents in the past is but one of the requirements for invocation of Section 3 of the MCOCA. Continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. It is only if an organised crime is committed by the accused after the promulgation of MCOCA that he may, seen in the light of the previous charge sheets and the cognizance taken by the competent court, be said to have committed an offence under Section 3 of the Act. (2016)3 PLRSC 960

Criminal trial – PW the first informant stated that he witnessed the incident while he was standing in the first floor gallery of his building which was abutting the Pandal where the incident took place -  He also deposed that he had identified A1 and A12 in the Test Identification Parades  - But it is not clear whether he could have witnessed the incident from the first floor as the setting up of the Pandal was completed and the work of putting tarpaulin over the Pandal was done and only the decoration of the frill was going on -  It is doubtful whether PW could have witnessed the incident in the state of commotion when everyone was running for shelter due to firing. (2016)3 PLRSC 351

Criminal Trial - Quantum of sentence  - It is the duty of the Court awarding sentence to ensure justice to both the parties and therefore undue leniency in awarding sentence needs to be avoided because it does not have the necessary effect of being a deterrent for the accused and does not re-assure the society that the offender has been properly dealt with - It is not a very healthy situation to leave the injured and complainant side thoroughly dissatisfied with a very lenient punishment to the accused – High court reduced the sentence for imprisonment which was R.I. for 10 years for the offence punishable under Section 307 as well as Section 307 read with Section 34 of the IPC to a period already undergone by the respondents which was of one year and nine months only –The order of punishment imposed by the High Court suffers from the vice of being over-lenient even in absence of any mitigating circumstance -  Apex court held the sentence of rigorous imprisonment for three years in place of period already undergone as awarded by the High court . (2016)3 PLRSC 444

Criminal trial - Related witnesses - Admissibility of a statement by related witnesses - There is no bar on the admissibility of a statement by related witnesses supporting the prosecution case, but it should stand the test of being credible, reliable, trustworthy, admissible in accordance with law and corroborated by other witnesses or documentary evidence of the prosecution - It is the quality of the witness that matters and not the quantity, when the related witness was examined and found credible -  In such a case non-examination of an independent witness would not be fatal to the prosecution case  - Evidence . Held, that in the present case, however, the prosecution witnesses PW-4 and PW-5, contradict each other, and their statements are not corroborated by any independent witness in spite of the incident happening in the market place, with shops on both sides of the road. Therefore, in our view, as the testimonies of PW-4 and PW-5 are not completely reliable, this is a fit case where corroboration by an independent witness was required. The case of the prosecution also weakens on the ground that the only independent witness PW-8 turned hostile. (2016)3 PLRSC 554

Criminal Trial - Statements of alleged eye witnesses – Disbelieved - In the complaint, the names of the assailants are not mentioned and also the names of the persons who were present during the occurrence are not mentioned - PW slipping away unnoticed by the others particularly after the alleged attack is utterly unbelievable - It appears unreal - They are not strange to expect and they did not render any help for shifting the injured to the hospital nor had the courtesy to go inside the hospital to ascertain the condition and also did not inform the occurrence to the police - The aspect of fear is without any foundation and is not supported by any evidence of act or conduct. (2016)3 PLRSC 414

Criminal Trial – Suspicious circumstances  - Informant party of forest officials , comprising of about 10 forest officials in a jeep, intercepted a bullock cart - It was alleged that  the accused herein were present on the said cart and transporting stolen teak wood log clandestinely and illegally, without a pass or permit - It was further alleged that an altercation ensued - When the injuries sustained by the deceased were more serious in nature than the  injuries sustained by other two forest officers, which were minor in nature, then the deceased should have been taken to hospital first or atleast along with other two injured forest officials, who were taken to hospital in the first instance – Suspicious circumstances. (2016)3 PLRSC 202

Criminal trial – Test identification parade – Incident of 12.8.1995 - When the incident of firing occurred in the circumstances wherein much time was not available for the eye-witnesses to clearly see the accused -  In such a situation, it was of much more importance that the Test Identification Parades were to be conducted without any delay - The first Test Identification Parade was held after about 1½ months of the incident and the second Test Identification Parade was conducted after more than a year of the incident -  Even if it is taken into account that A12 was arrested after a year and within one month thereafter the test Identification Parade was conducted, still it is highly doubtful whether the eye-witnesses could have remembered the faces of the accused after such a long period - Accused was arrested by the first week of September, 1996 and the Test Identification Parade was conducted on 4.10.1996 -  It is too large a gap for the witness to have remembered the face of the accused - Though the incident took place in broad daylight, the time for which the eye-witnesses could see the accused was not sufficient for them to observe the distinguishing features of the accused, especially because there was a commotion created after the firing and everyone was running to shelter themselves from the firing.  (2016)3 PLRSC 351

Criminal trial – Test Identification Parade - No doubt, law with regard to the importance of TIP is well settled that identification in court is a substantive piece of evidence and TIP simply corroborates the same - Prosecution witness identified the accused-appellants in court for the first time, during trial, in the year 1997-98 and the incident occurred in the year 1995 -  After considering some undisputed facts like occurrence of incident at night, at a place with improper lighting and all the accused-appellants were not known to the forest officers, except one present at the place of incident, there should have been TIP conducted at the instance of the investigating officer - Therefore, the identification of the accused-appellants by the prosecution witness for the first time after a gap of more than 2 years from the date of incident is not beyond reasonable doubt, the same should be seen with suspicion. (2016)3 PLRSC 202

Criminal trial – Test identification parade – PW stated that in the Test Identification Parade he had identified four persons out of 10-12 persons standing in the row  - Special Executive Officer deposed that he conducted 2 Test Identification Parades on the same day - In the first Parade, he placed A1 and one more accused who died later and in the second, he placed A3 and A4 for identification - At no point of time, 4 accused were put together for identification for PW to identify out of the whole group - Also, PW1 stated that he had seen the deceased receiving a bullet injury on his forehead but as per the postmortem report, there was no injury on the forehead of the deceased as he had been attacked from behind -Makes the testimony of PW even more vulnerable. (2016)3 PLRSC 351

Criminal Trial - That in case there are two views which can be culled out from the perusal of evidence and application of law, the view which favours the accused should be taken - It has been recognized as a human right by this Court.  (2016)3 PLRSC 562

D

Death Sentence -  'human dignity' - Article 21 has its traces in the dignity of human being. It has been recognized as part of Article 21  -Once we recognize this aspect of dignity of human being, it does not end with the confirmation of death sentence, but goes beyond and remains valid till such a convict meets his/her destiny - Therefore, the process/procedure from confirmation of death sentence by the highest Court till the execution of the said sentence, the convict is to be treated with human dignity to the extent which is reasonable and permissible in law - Constitution of India, Article 21.  (2016)3 PLRSC 692

 Death Sentence - Constitution of India, Article 21 - Lays down that nobody shall be deprived of his life and liberty except according to the procedure established by law - It now stands settled that the procedure established by law has to be 'due procedure'  - By judicial interpretation, this Court has read the principle of reasonableness into the said procedure contemplated by Article 21, holding that it must be 'right and just and fair' and not arbitrary, fanciful or oppressive -  Even as per the statute book, this procedure does not culminate with the dismissal of appeals of the convicts by the final Court - No doubt, when an accused is tried of an offence by a competent court of law and is imposed such death penalty and the said death penalty is upheld by the highest Court, the procedure that is established by law has been followed up to this stage - However, in the statutory framework, further procedural safeguards in the form of judicial review as well as mercy petitions are yet to be traversed - This would also be covered by the expression 'procedure established by law' occurring in Article 21 - Therefore, till the time limitation period for filing the review petition and thereafter reasonable time for filing the mercy petition has not lapsed, issuing of death warrants would be violative of Article 21.  (2016)3 PLRSC 692

Death Sentence - Supreme Court pronounced judgment on 15.05.2015 dismissing appeal under Article 136 confirming the death penalty and within six days of the dismissal of the criminal appeals, learned Sessions Judge issued the death warrants on 21.05.2015 -  This is clearly impermissible and unwarranted for various reasons - Constitution of India, Article 21, 72, 136, 137, 161. (2016)3 PLRSC 692

Delay - Review application  - Review application  filed before the High Court dismissed on the ground of delay of 706 days in filing  - Delay of 1705 days before the Supreme Court – Relates to claim made for enhancement of compensation -  Review application was filed before the High Court seeking land value at the rate of as was granted to the adjoining property - Appeals allowed - Appellants shall be entitled to land value fixed  for adjoining land - However, the appellants shall not be entitled for any statutory benefits for a period of 2411 days covered by delay before the High Court as well as before this Court -  Land Acquisition.  (2016)3 PLRSC 448

Delay and laches  -  Grievance primarily on the basis of the adjudication made earlier by the High Court since affirmed by the Supreme court by Order dated 01.05.2009 -  Present writ petitions filed on  27.08.2009 dismissed  on the ground of delay and laches, the decision in the earlier proceedings notwithstanding -   High Court held passive conduct of the respondents herein tantamounted to sleeping over their rights for over two years to wake from their feigned slumber after the decision of the Supreme Court on 01.05.2009, to agitate their perceived rights -  That having regard as were, to the financial implications that would ensue in case the inordinately delayed claim of the  respondents is/was by entertained, thus adversely impacting upon public  exchequer, the learned Single Judge declined the relief sought for  - Upheld by Supreme court -  See no weighty or cogent reason for the respondents to wait till the earlier Special Leave Petition was dismissed on 01-05-2009 by this Court to embark upon their pursuit for redress in similar terms. - Upholding the view, held, that in our considered opinion therefore, the respondents were deliberately bidding time to seek judicial remedy in case their co-applicants under the scheme emerged successful in their adjudicative enterprise. Facts, It is not disputed that the writ petitioners in the earlier round of adjudication were applicants under SPINE alike the respondents herein. They being appalled by the delay in the grant of their receivables thereunder and being faced with the letter dated 05-02-2007 whereby pending receipt and scrutiny of the reports as called for, further sanction/disbursement of Grants-in-Aid under the said scheme was stopped, did promptly approach the Guwahati High Court with a batch of writ petitions in the year 2007 itself and as narrated hereinabove were favoured with a direction to the implementing authorities for consideration of their application for the investment subsidy in accordance with law without being influenced by the said letter. Admittedly, the respondents herein elected not to join them and instead, soon thereafter this Court affirmed the above verdict on 01-05-2009, staked their claim on 27-08-2009. There is evidently thus a time lag of more than two years by which the respondents’ challenge was delayed. (2016)3 PLRSC 573

Dowry Prohibition Act 1961, Section 6 - If the dowry amount or articles of married woman was placed in the custody of his husband or in-laws, they would be deemed to be trustees of the same - The person receiving dowry articles or the person who is dominion over the same, as per Section 6 of the Dowry Prohibition Act, is bound to return the same within three months after the date of marriage to the woman in connection with whose marriage it is given - If he does not do so, he will be guilty of a dowry offence under this Section - Section further lays down that even after his conviction he must return the dowry to the woman within the time stipulated in the order - Giving of dowry and the traditional presents at or about the time of wedding does not in any way raise a presumption that such a property was thereby entrusted and put under the dominion of the parents-in-law of the bride or other close relations so as to attract ingredients of Section 6 of the Dowry Prohibition Act - After marriage, SR and Husband were living in Bangalore at their matrimonial house - In respect of ‘stridhana articles’ given to the bride, one has to take into consideration the common practice that these articles are sent along with the bride to her matrimonial house - It is a matter of common knowledge that these articles are kept by the woman in connection with whose marriage it was given and used by her in her matrimonial house when the appellants have been residing separately, it cannot be said that the dowry was given to them and that they were duty bound to return the same to SR. (2016)3 PLRSC 88

Duty of court  – Concession made by counsel - Court ought not to have issued the impugned directions merely because a request was made by the learned counsel appearing for the respondents -  The same would hold true even if a concession was made by the counsel for the appellant -  The Court, while, exercising its powers under Article 227 of the Constitution of India, ought to have confined itself to the subject matter and the issues raised by parties in the Writ Petition - The digression of or expansion of the supervisory jurisdiction under Article 227 of the Constitution of India, would open precarious floodgates of litigation should the limitation on the supervisory jurisdiction not be observed mindfully - If for any reason, the Writ Court perceived the oral request made by the respondents to have justified the ends of justice and desired to accept the concession so made by the counsel for appellant-Society, the said request not being the subject matter of the Writ Petition required the Court to query whether the counsel for the appellant-Society has been authorized to make such a statement by the appellant-Society or whether any such resolution has been passed by the appellant-Society giving concession in matters of this nature - Since the required caution was not exercised by the learned Judges of the Writ Court, the directions issued by the Writ Court suffer from infirmity and hence require to be set aside – Advocate – Concession.               (2016)3 PLRSC 654

E

Education – Admission – Disability - Court cannot assess the percentage of disability - High Court was not justified in interfering with the selection process in exercise of writ jurisdiction and declaring the disability of the respondent at 40% and to consider his case in the category of physically handicapped persons – Prospectus provided that  candidates should not submit along with application form, any medical certificate to the effect that they are physically challenged - Percentage of disability has to be determined by the Medical Board, which is specifically mentioned in the prospectus -  Board has assessed the disability of vision at 20% and issued the certificate -  Certificate granted by the District Head Quarters Hospital,  submitted by the respondent  was 40% - Court cannot assess the percentage of disability - Medical Board has been constituted as per the norms of prospectus and it has clearly recorded its opinion as regards the disability of vision of the respondent. (2016)3 PLRSC 97

Education - Examination - As it is, the system of examination pursued over the decades, has been accepted by all who are rationale, responsible and sensible, to be an accredited one, for comparative evaluation of the merit and worth of candidates vying for higher academic pursuits - It is thus necessary, for all the role players in the process, to secure and sustain the confidence of the public in general and the student fraternity in particular in the system by its unquestionable trustworthiness - Such a system is endorsed because of its credibility informed with guarantee of fairness, transparency authenticity and sanctity - There cannot be any compromise with these imperatives at any cost -  All India Pre-Medical and Pre-Dental Test , 2015.  Held, The disclosures in the investigation suggest that the benefit of answer key has been availed by several candidates taking the examination, by illegal means - Having regard to the modus operandi put in place, the numbers of cell phones and other devices used, it is not unlikely that many more candidates have availed such undue advantage, being a part of the overall design and in the process have been unduly benefited qua the other students who had made sincere and genuine endeavours to solve the answer paper on the basis of their devoted preparation and hard labour - In view of the widespread network, that has operated, as the status reports disclose and the admission of the persons arrested including some beneficiary candidates, we are of the opinion, in view of the strong possibilities of identification of other candidates as well involved in such mal practices, that the examination has become a suspect.       (2016)3 PLRSC. 721

Education - Examination - Segregation only of the already 44 identified candidates stated to be the beneficiaries of the unprincipled manoeuvre by withholding their results for the time being, in our comprehension cannot be the solution to the problem that confronts all of us - Not only thereby, if the process is allowed to advance, it would be pushed to a vortex of litigation pertaining thereto in the foreseeable future, the prospects of the candidates would not only remain uncertain and tentative, they would also remain plagued with the prolonged anguish and anxiety if involved in the ordeal of court cases -  Acting on this option, would in our estimate, amount to driving knowingly the students, who are not at fault, to an uncertain future with their academic career in jeopardy on many counts - Further, there would also be a lurking possibility of unidentified beneficiary candidates stealing a march over them, on the basis of the advantages availed by them through the underhand dealings as revealed - Having regard to the fact, that the course involved with time would yield the future generations of doctors of the country, who would be in charge of public health, their inherent merit to qualify for taking the course can by no means be compromised -   All India Pre-Medical and Pre-Dental Test , 2015. (2016)3 PLRSC. 721

Education – Reexamination -  Schedule of dates for examination - Conscious are we that, as a consequence, the All India Pre-Medical and Pre-Dental Test 2015 would have to be annulled, thereby disturbing the time schedule fixed by this court in Mridul Dhar  and Priya Gupta - We perceive that in the extraordinary fact situation where the examination involved is vitiated to the core by use of deceitful means and measures to benefit some, the consideration of departure from the said time schedule per se would not be a wholesome justification to sustain the otherwise tainted exercise - The time frame fixed by this court in the above cases, in our opinion, was not intended to be inflexibly adhered to in the situation of the kind with which we are seised of - The schedule of dates was fixed, so as to streamline and discipline the process of admission by its uniform application - We are of the understanding that the annulment of the examination and the consequences to follow, in the singular facts and circumstances of the cases, would not in any way be repugnant to the renderings of this court in Mridul Dhar (supra) and Priya Gupta (supra) - The course we proposed to embark upon, is the demand of the situation based on contemporaneous official records and that facts corroborated thereby - The pleadings of the Board, that its answer key had been prepared whereafter the challenges from the candidates have been received and have been verified with the subject experts, in the teeth of the disclosures in the investigation lack in persuasion to save the examination. (2016)3 PLRSC. 721

Education – Reexamination  - The abrogation of the examination, would result in some inconvenience to all concerned and that same extra time would be consumed for holding a fresh examination with renewed efforts therefor - This however, is the price, the stakeholders would have to suffer in order to maintain the impeccable and irrefutable sanctity and credibility of a process of examination, to assess the innate worth and capability of the participating candidates for being assigned inter se merit positions commensurate to their performance based on genuine and sincere endeavours -  All India Pre-Medical and Pre-Dental Test , 2015.Held,   It is a collective challenge that all the role-players would have to meet, by rising to the occasion and fulfill the task ahead at the earliest, so as to thwart and abort the deplorable design of a mindless few seeking to highjack the process for selfish gain along with the unscrupulous beneficiaries thereof. Though the Board has taken a plea that having regard to the enormity of the exercise to be undertaken, the same cannot be redone before four months, we would emphasize that this is an occasion where it (the Board) ought to gear up in full all its resources in the right spirit, in coordination with all other institutions that may be involved so as to act in tandem and hold the examination afresh at the earliest.  Held further, We are not unaware that in holding the present examination as well as in participating in the exercise, all genuinely concerned have put in tireless efforts. All these however have been rendered futile by a handful of elements seeking to reap undue financial gain by subjecting the process to their evil manoeuvres. We have thus no hesitation to order that the All India Pre-Medical and Pre-Dental Test stands cancelled. (2016)3 PLRSC. 721

Education – Reexamination - All India Pre-Medical and Pre-Dental Test , 2015 - Having regard to the uncompromising essentiality of a blemishless process of examination involving public participation, we have no alternative but to hold that the examination involved, suffers from an infraction of its expected requirement of authenticity and credence - We are conscious of the fact that every examination being conducted by a human agency is likely to suffer from some shortcomings, but deliberate inroads into its framework of the magnitude and the nature, as exhibited, in the present case, demonstrate a deep seated and pervasive impact, which ought not to be disregarded or glossed over, lest it may amount to travesty of a proclaimed mechanism to impartially judge the comparative merit of the candidates partaking therein - If such an examination is saved, merit would be a casualty generating a sense of frustration in the genuine students, with aversion to the concept of examination - The possibility of leaning towards unfair means may also be the ultimate fall out - Even if, one undeserving candidate, a beneficiary of such illegal machination, though undetected is retained in the process it would be in denial of, the claim of more deserving candidates - At the present, the examination stands denuded of its sanctity as it is not possible to be cleansed of all the participating beneficiary candidates with certainty - We are thus, on an overall assessment of the materials on record, left unpersuaded to sustain the examination - We must observe that till this stage of the investigation, no conscious lapse or omission on the part of the Board, contributing to the otherwise appalling mischief has surfaced. (2016)3 PLRSC. 721

Election -  High Court should not have interfered with the election after the process of election had commenced -  Whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court’s order -  Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated - Dentists Act, 1948 Section 3 (a)  - Dental Council (Election) Regulations, 1952. (2016)3 PLRSC 387

Employee’s Compensation Act, 1923 - Interest @12% -  Insurance company liable to pay. (2016)3 PLRSC 243

Employee’s Compensation Act, 1923 – Wages - Neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident -  Deceased was a highly skilled workman and would often be required to undertake long journeys outside the state in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit - Wages of the deceased were accepted as Rs.4,000/- per month + daily bhatta of Rs.6,000/- per month –  Under the Payment of Wages Act, 1936, Section 13A, the onus is on the employer to maintain the register and records of wages - Since the employer has failed in his duty to maintain the proper records of wages of the deceased, the appellants cannot be made to suffer for it -  Payment of Wages Act, 1936, Section 13A . (2016)3 PLRSC 243

Employee’s Compensation Act, 1923 Section 3(1) – Negligence of workman - The E.C. Act is a welfare legislation enacted to secure compensation to the poor workmen who suffer from injuries at their place of work.  - Liability of the employer, thus, arises, when the workman sustains injuries in an accident which arises out of and in the course of his employment - Section 3 of the Act does not create any exception of the kind, which permits the employer to avoid his liability if there was negligence on part of the workman -  The Act does not envisage a situation where the compensation payable to an injured or deceased workman can be reduced on account of contributory negligence - While no negligence on part of the deceased has been made out as he was merely trying his best to stop the truck from moving unmanned, even if there were negligence on his part, it would not disentitle his dependents from claiming compensation under the Act. (2016)3 PLRSC 243

Employees’ State Insurance Corporation Act, 1948, Section 85(a)(i)(b) - Whether the court has been given judicial discretion only to reduce the sentence of imprisonment for any term lesser than six months or whether it also has discretion to levy no fine or a fine of less than five thousand rupees –  The object of creating offence and penalty under the Employees’ State Insurance Act, 1948 is clearly to create deterrence against violation of provisions of the Act which are beneficial for the employees - Non-payment of contributions is an economic offence and therefore the Legislature has not only fixed a minimum term of imprisonment but also a fixed amount of fine of five thousand rupees under Section 85(a)(i)(b) of the Act - There is no discretion of awarding less than the specified fee, under the main provision - It is only the proviso which is in the nature of an exception whereunder the court is vested with discretion limited to imposition of imprisonment for a lesser term - Conspicuously, no words are found in the proviso for imposing a lesser fine than that of five thousand rupees. (2016)3 PLRSC 520

Evidence Act, 1872 Section 11 - Alibi -  The word alibi means "elsewhere" - Plea of alibi is not one of the General Exceptions contained in Chapter IV of IPC -  It is a rule of evidence recognized under Section 11 of the Evidence Act -  However, plea of alibi taken by the defence is required to be proved only after prosecution has proved its case against the accused – Indian Penal Code, Chapter IV.  (2016)3 PLRSC 1

Evidence Act,  1872,  Section 25 - Confession – When a person is in police custody, the confession made by him even to a third person, that is other than a police officer, shall also become inadmissible - This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such - If he is a police officer and  confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence .         Held, The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practicing oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and  confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. (2016)3 PLRSC 670

Evidence Act,  1872,  Section 25, 26, 27  - Section 27 is in the form of proviso to Sections 25 and 26 of the Evidence Act  - It makes it clear that so much of such information which is received from a person accused of any offence, in the custody of a police officer, which has led to discovery of any fact, may be used against the accused - Such information as given must relate distinctly to the fact discovered - In the present case, the information provided by all the accused/ appellants in the form of confessional statements, has not led to any discovery - More starkly put, the recovery of scooter is not related to the confessional statements allegedly made by the appellants - This recovery was pursuant to the statement made by H - It was not on the basis of any disclosure statements made by these appellants -  Confessional statement allegedly given by Appellant is again in another FIR - Therefore, the situation contemplated under Section 27 of the Evidence Act also does not get attracted -  Even if the scooter was recovered pursuant to the disclosure statement, it would have made the fact of recovery of scooter only, as admissible under Section 27 of the Evidence Act, and it would not make the so-called confessional statements of the appellants admissible which cannot be held as proved against them. (2016)3 PLRSC 670

 

Expert  - Merely because an expert has tendered an opinion while also furnishing the basis of the opinion and that too without being conclusive and definite, it cannot be said that he has committed perjury so as to help somebody - And, mere rejection of the expert evidence by itself may not also warrant initiation of proceedings under Section 340 of CrPC - CrPC Section 340. (2016)3 PLRSC 41

Expert evidence and Witness of Fact - Expert evidence needs to be given a closer scrutiny and requires a different approach while initiating proceedings under Section 340 of CrPC-  After all, it is an opinion given by an expert and a professional and that too especially when the expert himself has lodged a caveat regarding his inability to form a definite opinion without the required material - The duty of an expert is to furnish the court his opinion and the reasons for his opinion along with all the materials - It is for the court thereafter to see whether the basis of the opinion is correct and proper and then form its own conclusion - But, that is not the case in respect of a witness of facts - Facts are facts and they remain and have to remain as such forever - The witness of facts does not give his opinion on facts; but presents the facts as such - However, the expert gives an opinion on what he has tested or on what has been subjected to any process of scrutiny - The inference drawn thereafter is still an opinion based on his knowledge -  In case, subsequently, he comes across some authentic material which may suggest a different opinion, he must address the same, lest he should be branded as intellectually dishonest -  Objective approach and openness to truth actually form the basis of any expert opinion - CrPC Section 340 . (2016)3 PLRSC 41

Eye Witness – Family member - Unable to appreciate the contention that the eye-witnesses are only the family members and their testimonies are interested ones -  Occurrence having taken place inside the house it is only the family members who could witness it-  PW4 is an independent witness and he was also injured during the occurrence - His testimony corroborates the testimonies of other eye-witnesses. (2016)3 PLRSC 815

F

FERA - Complaint  - During pendency of the complaint, the Act (FERA) was repealed   - The fact that the adjudicating officer chose to drop the proceedings against the appellant herein does not absolve the appellant of the criminal liability incurred by him by virtue of the operation of Section 40 read with Section 56 of the Act - The offence under Section 56 read with Section 40 of the A renewal of ct is an independent offence - FERA. Held, If the factual allegations contained in the charge are to be proved eventually at the trial of the criminal case, the appellant is still liable for the punishment notwithstanding the fact that the presence of the appellant was required by the adjudicating officer in connection with an enquiry into certain alleged violations of the various provisions of the Act, but at a subsequent stage the adjudicating officer opined that there was either insufficient or no material to proceed against the appellant for the alleged violations of the Act, is immaterial.               (2016)3 PLRSC 898

FERA – Repeal - Complaint  Quashed - Appeal pending – Appeal  against the conclusion of the adjudicating officer that the proceedings against the appellant herein for the alleged violation of the various provisions of the FERA Act are required to be dropped has not even attained finality - Admittedly, such an order of the adjudicating officer confirmed by the statutory appellate authority is pending consideration in an appeal before the High Court - Though, in our opinion, the result of such an appeal is immaterial for determining the culpability of the appellant for the alleged violation of Section 40 read with Section 56 (of the FERA Act) , we must record that the submission made on behalf of the appellant in this regard itself is inherently untenable. (2016)3 PLRSC 898

FIR – Delay in lodging - Occurrence had taken place at about 2.00 p.m. on 9.10.1983 and the complaint had been lodged at about 6.15 p.m. on the same day, on which the case came to be registered -  As mentioned in the FIR, the police station was situated at a distance of 54 kms. from the occurrence place -  In such circumstances there is no delay in lodging the complaint – Criminal Trial. (2016)3 PLRSC 815

G

Good Samaritan – Rights  - Accident cases require fastest care and rescue which could be provided by those closest to the scene of the accident. Bystanders clear support is essential to enhance the chances of survival of victim in the ‘Golden Hour’ i.e. the first hour of the injury - Direct that the court should not normally insist on appearance of Good Samaritans as that causes delay, expenses and inconvenience - The concerned court should exercise the power to appoint the Commission for examination of Good Samaritans in accordance with the provisions contained in section 284 of the Code of Criminal Procedure, 1973 suo motu or on an application moved for that purpose, unless for the reasons to be recorded personal presence of good Samaritan in court is considered necessary. (2016)3 PLRSC 823

Good Samaritan – Rights  - Notification dated 12.5.2015, 21.1.2016  issued by the Ministry of Road Transport and Highways containing guidelines for protection of good Samaritans. (2016)3 PLRSC 823

Guarantors - No reason why the Joint Memo, which states compromise arrived at between the Bank and the principal debtors, would not bind the guarantor when under the Clause she has admitted that any judgment or award obtained by the Bank against the principal debtor would bind the parties – Bank Loan. (2016)3 PLRSC 542

H

Hindu Minority and Guardianship Act, 1956, Section 8(1), 8(2)(a) - A bare reading of Section 8(1) of the Act indicates that it empowers the natural guardian to do all the acts which are necessary or reasonable or proper for the benefit of the minor - Section 8(2)(a) of the Act prescribes that either the purchaser or the seller should obtain the permission of the District Court to transfer the property by sale – Permission of court not taken at the time of alienation - Hence, the present transaction on the face of it is in contravention of the mandatory provisions laid down by the Act - When once a transaction takes place in the name of the minor which is in contravention of the 1956 Act and which is not done for legal necessity, such transaction is voidable and unless such a transaction is sought to be impeached or set aside, the question of recovery of possession of that property does not arise.   (2016)3 PLRSC 865

Hindu Minority and Guardianship Act, 1956, Section 8(1), 8(2)(a) - Limitation Act, Section 7, Article 60  - A reading of Section 7 makes it clear that when one of several persons who are jointly entitled to institute a Suit or make an application for the execution of the decree and a discharge can be given without the concurrence of such person, time will run against all of them but when no such discharge can be given, time will not run against all of them until one of them becomes capable of giving discharge -  In the case on hand at the time of the filing of the suit, the 1st plaintiff was 20 years old, the 2nd Plaintiff was still a minor and the plaintiffs 3, 4 and 5, who are married daughters, were aged 29, 27 and 25 respectively, on the date of institution of the Suit -  As per Explanation 2 of Section 7, the manager of a Hindu undivided family governed by Mithakshara law shall be deemed to be capable of giving a discharge without concurrence of other members of family only if he is in management of the joint family property - In this case, plaintiffs 3 to 5 though majors as on the date of institution of Suit will not fall under Explanation 2 of Section 7 of the Limitation Act as they are not the manager or Karta of the joint family - The first plaintiff was 20 years old as on the date of institution of the Suit - Suit is instituted well within three years of limitation from the date of attaining majority as envisaged under Article 60 of the Limitation Act - Limitation Act Section 7, Articles 60, 109, 110 and 113. (2016)3 PLRSC 865

I

Ignorance - The mere fact of ignorance cannot be a valid ground - Settlement was not within the knowledge of the guarantor as she had not signed the joint memo signed by her son -  C stood a guarantor – Property mortgaged to bank – High Court Lok Adalat passed an award whereunder the borrower agreed to pay amount as final settlement of the claim of the Bank - Settlement was not within the knowledge of the guarantor C  as she had not signed the joint memo - One of her sons N  has signed it - Her advocate has also signed the Joint Memo -  Only later she learnt that the property has been ordered to be sold by auction - Also learnt about the signing of Joint Memo by N  (her son) and the Bank - The respondent, and her son, who signed the joint memo, were residing in the same house - No reason why the Respondent would not know of the joint memo, when she could have by reasonable means made herself aware of the proceedings. (2016)3 PLRSC 542

Indian Contract Act, 1872, Section 128 -  Guarantor - Liability of -  The legislature has succinctly stated that the liability of the guarantor is co-extensive with that of the principal debtor unless it is otherwise provided by the contract - The only exception to the nature of the liability of the guarantor is provided in the Section itself, which is only if it stated explicitly to be otherwise in the Contract - It is the prerogative of the Creditor alone whether he would move against the principal debtor first or the surety, to realize the loan amount - The guarantor cannot escape from her liability as a guarantor for the debt taken by the principal debtor - Loan agreement,- There is no clause which shows that the liability of the guarantor is not co-extensive with the principal debtor -  Banking. (2016)3 PLRSC 542

Indian Evidence Act,  1872,  see Evidence Act,  1872. 

Indian Penal Code, (1860) Section 149  - Common Object – Common Intention to kill – Can arise at the spur of the moment – Even if it is assumed that there was no common object of killing, but only of stopping the deceased and others from contesting the elections -  It cannot be ruled out that the common intention to kill might have arisen on the spur of the moment - The actions of the appellants and the injuries inflicted on the body of the deceased also go to substantiate the same . Held, Indian Penal Code, Section 149  has essentially two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting of five or more members, and (ii) such offence must be committed in prosecution of the common object under Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object - For ‘common object’, it is not necessary that there should be prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on the spur of the moment; it is enough if it is adopted by all the members and is shared by all of them -  Ramachandran and Ors. v. State of Kerala, (2011) 9 SCC 257, relied.  (2016)3 PLRSC 588

Indian Penal Code, 1860  (XLV of 1860) – Alibi - Ocular testimony of eye witness  - 3 injured eye witnesses have deposed in the present case - It is a case of day light incident - Injuries on the person of said eye witnesses have been corroborated by other witnesses  - Ocular testimony of eye witnesses cannot be discarded lightly - Once the prosecution has discharged its burden, the burden to prove that accused was not present with other accused at the place of incident and had gone elsewhere, lies on him - Injured eye witnesses have assigned specific role as to how he assaulted S who suffered ante mortem injuries which gets corroborated from the autopsy report - Defence plea of accused  - There is no cavil over the fact that accused was posted as Lab Assistant with the Senior Secondary School -  It is proved on the record that in the proceedings under Section 107/151 of Cr.PC before Executive Magistrate, he was to be present in said case on 17.02.1995 - His presence and role is narrated in detail by the injured eye witnesses -  In view of his role in the incident narrated by the eye witnesses, it is hard to believe that after moving application on 16.02.1995 for casual leave for 17.02.1995, accused attended the school next day in the first half and sought half day leave thereafter -  The attendance register was not seized immediately after the incident -  His plea of alibi is vacillating - Accused has taken false plea of alibi. (2016)3 PLRSC 1

Indian Penal Code, 1860  (XLV of 1860) - Alleged delay in forwarding the F.I.R to the Magistrate - There was no material on record to show or suggest that the F.I.R was tampered or it was fabricated at a later date by antedating it or the delay in sending the F.I.R or the delay in placing it before SDJM by the Sub Inspector of Police or the delay in signing the F.I.R by SDJM was so very vital to doubt the case of the prosecution. (2016)3 PLRSC 108

Indian Penal Code, 1860  (XLV of 1860) - “shall also be liable to fine”  - Clause “shall also be liable to fine”, in the context of Indian Penal Code may be capable of being treated as directory and thus conferring on the court a discretion to impose sentence of fine also in addition to imprisonment although such discretion stands somewhat impaired as per the view taken by this Court in the case of Zunjarrao Bhikaji Nagarkar v. Union of India (1999) 7 SCC 409 - But clearly no minimum fine is prescribed for the offences under the IPC nor that Act was enacted with the special purpose of preventing economic offences as was the case in Chern Taong Shang v. S.D. Baijal (1988) 1 SCC 507  - Employees’ State Insurance Corporation Act, 1948,  Section 85(a)(i)(b), is an economic offence and therefore the Legislature has not only fixed a minimum term of imprisonment but also a fixed amount of fine of five thousand rupees under Section 85(a)(i)(b) of the Act. (2016)3 PLRSC 520

Indian Penal Code, 1860  (XLV of 1860) Chapter IV -  Alibi -  The word alibi means "elsewhere" - Plea of alibi is not one of the General Exceptions contained in Chapter IV of IPC -  It is a rule of evidence recognized under Section 11 of the Evidence Act -  However, plea of alibi taken by the defence is required to be proved only after prosecution has proved its case against the accused –Evidence Act, Section 11.  (2016)3 PLRSC 1

Indian Penal Code, 1860  (XLV of 1860) Section 149 - Provisions of Section 149 of the IPC are no longer available to the prosecution for convicting the appellants whose number is reduced to 4 consequent upon the acquittal of the remaining accused persons - It is a case which, in our opinion, falls more appropriately in situation three where the prosecution had named all those constituting the unlawful assembly, but, only four of those named were eventually convicted, thereby reducing the number to less than five - There is no evidence to suggest that any one, apart from the persons named in the charge-sheet were members of the unlawful assembly, but, were either not available or remained unidentified - Such being the position, the conviction of the appellants with the help of Section 149 of the IPC does not appear to be legally sustainable. (2016)3 PLRSC 632

Indian Penal Code, 1860  (XLV of 1860)  Section 149 -  Unlawul assembly -  Section 149, at the very outset it refers to participation of each member of an unlawful assembly, it has to be necessarily shown that there was an assembly of five or more persons, which is designated as unlawful assembly under Section 149 I.P.C. - When once, such a participation of five or more persons is shown, who indulge in an offence as a member of such an unlawful assembly, for the purpose of invoking Section 149, it is not necessary that there must be specific overt act played by each of the member of such an unlawful assembly in the commission of an offence -  What is required to be shown is the participation as a member in pursuance of a common object of the assembly or being a member of that assembly, such person knew as to what is likely to be committed in prosecution of any such common object - In the event of the proof of showing of either of the above conduct of a member of an unlawful assembly, the offence, as stipulated in Section 149, will stand proved . (2016)3 PLRSC 108

Indian Penal Code, 1860  (XLV of 1860) Section 149 -  Unlawul assembly -  Convinced that the implication of all the five accused was perfectly justified and was supported by legal evidence as was spoken to by the relevant witnesses which was duly corroborated by the medical evidence - Therefore, mere non mentioning of two of the names in the F.I.R cannot be fatal to the case of the prosecution.                (2016)3 PLRSC 108

Indian Penal Code, 1860  (XLV of 1860) Section 149 - Unlawful assembly -  It is not disputed that the accused persons were present at the site of the incident and were armed with deadly weapons - They had shared the common intention of stopping the deceased from contesting for the elections - These circumstances are indicative of the fact that all the accused persons, at that time, were the members of unlawful assembly because their common object was to threaten and prevent the deceased and other persons from contesting the College elections. (2016)3 PLRSC 588

Indian Penal Code, 1860  (XLV of 1860) Section 300 clause (3), 302 IPC 304 Part I - Condition of deceased at time of admission in hospital was serious and injuries received in the head was dangerous to his life – Doctor opined that condition of the deceased at the time of discharge from hospital was not critical and his condition was stable -  Apparent that the death occurred sixty two days after the occurrence due to septicaemia and it was indirectly due to the injuries sustained by the deceased caused in the incident - Prosecution failed to elicit from the Doctor that the head injury sustained by the deceased was sufficient in the ordinary course of nature to cause death - Having regard to the fact that deceased survived for sixty two days and that his condition was stable when he was discharged from the hospital, the court cannot draw an inference that the intended injury caused was sufficient in the ordinary course of nature to cause death so as to attract clause (3) of Section 300 IPC - Conviction under Section 302 IPC modified to Section 304 Part I IPC. (2016)3 PLRSC 10

Indian Penal Code, 1860  (XLV of 1860) Section 300 Exception 4 -  In terms of explanation to Exception 4, it is immaterial in such cases which party offers the provocation or commits the first assault. (2016)3 PLRSC 632

Indian Penal Code, 1860  (XLV of 1860) Section 300 Exception 4 - Keeping in view the nature of the injury, the vital part of the body on which the same was inflicted and the weapon used by the accused, and the medical evidence, that the said injury was sufficient in the ordinary course to cause death, culpable homicide would tantamount to murder but for the application of Exception 4 to Section 300 - The circumstances of the case leave no manner of doubt that the incident was without any pre-meditation and a sudden fight upon a sudden quarrel - The injuries upon the deceased were inflicted in the heat of passion and without the appellant taking any undue advantage or acting in a cruel or unusual manner - The fact situation of the case, therefore, attracts Exception 4 especially when in terms of explanation to Exception 4, it is immaterial in such cases which party offers the provocation or commits the first assault - Offence committed by the author of the injury is not murder but culpable homicide not amounting to murder punishable under Section 304 of the IPC. (2016)3 PLRSC 632

Indian Penal Code, 1860  (XLV of 1860) Section 300, 302 IPC,  304 Part 1  -  Intention is different from motive -  It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder - Emphasis in Section 300 (3) IPC is on the sufficiency of the injury in the ordinary course of nature to cause death - Sufficiency is the high probability of death in the ordinary course of nature - When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder - For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant - Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place - Appellant emerged carrying pistol in his hand and fired at the deceased - The weapon used and the manner in which attack was made and the injury was inflicted due to premeditation clearly establish that the appellant intended to cause the injury - Once it is established that the accused intentionally inflicted the injury, then the offence would be murder, if it is sufficient in the ordinary course of nature to cause the death- Injury was on the inner part of left thigh, which is the non-vital organ - Sufficiency of injury to cause death must be proved and cannot be inferred from the fact that death has taken place - Prosecution has not elicited from the doctors that the gunshot injury on the inner part of left thigh caused rupture of any important blood vessel and that it was sufficient in the ordinary course of nature to cause the death - Conviction converted form Section 302 IPC to Section 304 Part 1 IPC. (2016)3 PLRSC 235

Indian Penal Code, 1860  (XLV of 1860) Section 302 read with Section 149 - Legal principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal reiterated. Held, that five general principles in Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415, as follows: An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. If two reasonable c onclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”   (2016)3 PLRSC 554

Indian Penal Code, 1860  (XLV of 1860) Section 302  - Evidence Act,  Section 106 - When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution - In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed -  The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer -  On the date of occurrence, when accused and his father were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries - When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime. (2016)3 PLRSC 393

Indian Penal Code, 1860  (XLV of 1860) Section 304 Part I - Act committed was with intention to cause death or of causing such bodily injury as was likely to cause death - That even when the act may not have been committed with the intention of causing death, the same was intended to cause such bodily injury as was likely to cause death, within the meaning of Section 304 Part I. (2016)3 PLRSC 632

Indian Penal Code, 1860  (XLV of 1860) Section 304 part II - We find that punishment of five years appears to be just and proper - It could have been even more because eventually the incident resulted in death of a person though the appellant did not intend to cause death of deceased - In the absence of any cross appeal by the State on the issue of quantum of sentence, we do not therefore consider it to be proper to go into the question of adequacy of sentence in this appeal filed by the accused. (2016)3 PLRSC 752

Injunction  - Injunction could not be claimed when plaintiffs stand dispossessed from the suit property prior to the filing of the suit - The question of establishing settled possession did not, therefore, arise in relation to the properties that already stood cleared of any structures by demolition of whatever stood on the same – Property was vacant as on the date of the filing of the suit there was no question of the plaintiffs claiming settled possession of the said property. (2016)3 PLRSC 801

Interest on refund of registration amount  - Rate of interest payable on refund of registration amount - Delhi Development Authority - Refunded the registration amount along with only 7% interest in terms of the offer document – Upheld  - No material for coming to the finding by the MRTP that payment of interest on the registration amount should not be less than one charged from the applicants when they commit a default -  A default clause is introduced to deter any delay or default and hence such penalty is by its very nature a deterrent one - That by itself offers a reasonable justification for the appellant to charge a higher rate of interest in the case of delay/default - So far as interest on the registration amount is concerned it stands on a different footing - The relevant provision in the Brochure of the 1985 scheme by itself does not appear to be unreasonable in allowing interest @ 7% p.a. - Nothing has been brought to our notice which may show that the registration amount is to remain locked for any fixed term or that the appellant can refuse an application for cancellation of registration at an early stage or even before draw of lots for allotment/allocation of flats - In such a situation it is not possible to infer that the registration deposits must reasonably be kept in long term fixed deposits with a view to earn higher interests. (2016)3 PLRSC 954

Interpretation  - Principle of  - It is well settled principle of interpretation that inconvenience and hardship to a person will not be the decisive factors while interpreting the provision - When bare reading of the provision makes it very clear and unequivocally gives a meaning it was to be interpreted in the same sense as the Latin maxim says "dulo lex sed lex", which means the law is hard but it is law and there cannot be any departure from the words of the law.  Held, The High Court as well as the Trial Court erred in applying Article 109 of the Limitation Act, where Article 109 of the Act clearly speaks about alienation made by father governed by Mitakshara law and further Courts below proceeded in discussing about the long rope given under Article 109 of the Limitation Act of 12 years and comparatively lesser time of 3 years specified under Article 60 of the Act. (2016)3 PLRSC 865

Interpretation of statutes - The law is well settled that when the wordings of the Stature are clear, no interpretation is required unless there is a requirement of saving the provisions from vice of unconstitutionality or absurdity. (2016)3 PLRSC 520

 

J

Judgement – Ratio decidendi - Random sentences have been picked up from the judgment and used, without any attempt to understand the true purport of the judgment in its entirety - It is a well settled position of law that a word or sentence cannot be picked up from a judgment to construe that it is the ratio decidendi on the relevant aspect of the case -  It is also a well settled position of law that a judgment cannot be read as a statute and interpreted and applied to fact situations. (2016)3 PLRSC 57

Juvenile Justice (Care and Protection of children) Act, 2000, Section 2(k), 7(a)  - The appellant falls within the definition of “juvenile” under Section 2(k) of the Juvenile Justice (Care and Protection of children) Act, 2000 -  He can raise the plea of juvenility at any time and before any court as per the mandate of Section 7(a) and has rightly done so. (2016)3 PLRSC 562

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Land Acquisition Act, 1894    - Delay - Review application  - Review application  filed before the High Court dismissed on the ground of delay of 706 days in filing  - Delay of 1705 days before the Supreme Court – Relates to claim made for enhancement of compensation -  Review application was filed before the High Court seeking land value at the rate of as was granted to the adjoining property - Appeals allowed - Appellants shall be entitled to land value fixed  for adjoining land - However, the appellants shall not be entitled for any statutory benefits for a period of 2411 days covered by delay before the High Court as well as before this Court.  (2016)3 PLRSC 448

Land Acquisition Act, 1894 - In view of the efflux of time  - Do not think it would be proper to consider the matter on merits - Appeal disposed of directing the respondent State to allot and hand over a plot as per Rehabilitation and Resettlement Policy of the Government within a period of twelve weeks from today -  In case the same is not done within twelve weeks, the appellant will be entitled to additional compensation of Rs.1,000/- per day till it is handed over. (2016)3 PLRSC 121

Land Acquisition Act, 1894  - Application for releasing lands coming under Lal Dora in terms of letter of the Finance Minister of Haryana -  High Powered Committee turned down the request on the ground that possession of the property had already been taken, pursuant to Award and that the same had already been handed over to Haryana Urban Development Authority  - There being no Rojnama to show that the physical possession had already been taken, nor any pleadings in that regard - Find it difficult to appreciate the submission made by the State that the possession had already been taken and handed over to HUDA - Unless the property is taken possession of, in accordance with law, there arises no question of handing over the property to HUDA - Symbolic possession, as has been held in Raghbir Singh Sehrawat v. State of Haryana and others,***, (2012) 1 SCC 792  will not serve the purpose . (2016)3 PLRSC 487

Land Acquisition Act, 1894 – Panchnama - It is settled that one of the modes of taking possession is by drawing a Panchnama. Tamil Nadu Housing Board v. A. Viswam (dead) by Lrs. AIR 1996 SC 3377 and Larsen & Toubro Ltd. v. State of Gujarat and Ors. AIR 1998 SC 1608, relied. (2016)3 PLRSC 801

Land Acquisition Act, 1894 Section 28 – Payment of interest  -  Denial of statutory benefits  - Appellants could not be denied the statutory benefits available under the Act, in respect of the value of this land fixed, merely because there was a period of stay operating, may be in a proceeding at the instance of the appellants - Those are not relevant considerations or factors at all for the purpose of grant of statutory benefits available to a person, whose land has been acquired in terms of Section 28 of the Act - There is no exclusion of any period contemplated on whatever account under Section 28 of the Act -  The only reference is to the date of dispossession -  Liability to pay interest starts to run from that date. (2016)3 PLRSC 384

Land Acquisition Act, 1894 Section  4 -  Sale after notification under S. 4 - Plaintiff said to have purchased the suit property in terms of a sale deed long after the issue of the preliminary notification published in July 1984 -  Legal position about the validity of any such sale, post issue of a preliminary notification is fairly well settled - The sale in such cases is void and non-est in the eyes of law giving to the Vendee the limited right to claim compensation and no more - Land Acquisition Act, 1894. U.P. Jal Nigam v. Kalra Properties Pvt. Ltd. AIR 1996 SC 1170, referred. (2016)3 PLRSC 801

Limitation Act, 1963 Section 4(1) - Whether the appellants are entitled to interest for the period from the date of dispossession to the date of Notification under Section 4(1) - Award additional interest by way of damages, at the rate of 15% per annum for the period between 1.7.1984, the date when the appellants were dis-possessed till 2.9.1993, the date of Notification under Section 4(1) of the Act. (2016)3 PLRSC 472

Limitation Act, 1963 Section 5 -  It is well settled that the expression ‘sufficient cause’ is to receive liberal construction so as to advance substantial justice. When there is no negligence, inaction or want of bonafide is imputable to the appellants, the delay has to be condoned - The discretion is to be exercised like any other judicial discretion with vigilance and circumspection - The discretion is not to be exercised in any arbitrary, vague or fanciful manner - The true test is to see whether the applicant has acted with due diligence.        (2016)3 PLRSC 647

Limitation Act, 1963 Section 7, Article 60  - A reading of Section 7 makes it clear that when one of several persons who are jointly entitled to institute a Suit or make an application for the execution of the decree and a discharge can be given without the concurrence of such person, time will run against all of them but when no such discharge can be given, time will not run against all of them until one of them becomes capable of giving discharge -  In the case on hand at the time of the filing of the suit, the 1st plaintiff was 20 years old, the 2nd Plaintiff was still a minor and the plaintiffs 3, 4 and 5, who are married daughters, were aged 29, 27 and 25 respectively, on the date of institution of the Suit -  As per Explanation 2 of Section 7, the manager of a Hindu undivided family governed by Mithakshara law shall be deemed to be capable of giving a discharge without concurrence of other members of family only if he is in management of the joint family property - In this case, plaintiffs 3 to 5 though majors as on the date of institution of Suit will not fall under Explanation 2 of Section 7 of the Limitation Act as they are not the manager or Karta of the joint family - The first plaintiff was 20 years old as on the date of institution of the Suit - Suit is instituted well within three years of limitation from the date of attaining majority as envisaged under Article 60 of the Limitation Act - Limitation Act Section 7, Articles 60, 109, 110 and 113 - Hindu Minority and Guardianship Act, 1956, Section 8(1), 8(2)(a). (2016)3 PLRSC 865

Limitation Act, 1963 - Neither confers a right nor an obligation to file a Suit, if no such right exists under the substantive law - It only provides a period of limitation for filing the Suit. (2016)3 PLRSC 865

Limitation Act, 1963 Article 137 – Cause of action arises when the real dispute arises i.e. when one party asserts and the other party denies any right -  Cause of action in the present case is the claim of the claimant to the determination of base year for the purposes of escalation and the calculation made thereon, and the refusal of the appellant to pay as per the calculations -  Arbitration Act, 1996.  (2016)3 PLRSC 348

Limitation Act, 1963 Article 109  - Alienation made by mother of minors after death of father - After the death of the Father (2nd defendant's husband) automatically the Mother (2nd defendant)  becomes a natural guardian to her children -  Finding that as she was not the guardian appointed on the day to alienate the Suit schedule property therefore Article 109 of the Act applies which gives 12 years limitation from the day the alienee takes possession of the property and the alienation made by the father of ancestral property of the Hindus who are governed by Mitakshara law, and that the Suit is well within limitation, cannot be sustained.    (2016)3 PLRSC 865

Limitation Act, 1963 Article  60  - Would indicate that it applies to Suits by a minor who has attained majority and further by his legal representatives when he dies after attaining majority or from the death of the minor - The broad spectrum of the nature of the Suit is for setting aside the transfer of immovable property made by the guardian and consequently, a Suit for possession by avoiding the transfer by the guardian in violation of Section 8(2) of the 1956 Act - In essence, it is nothing more than seeking to set aside the transfer and grant consequential relief of possession - There cannot be any doubt that a Suit by quondam minor to set aside the alienation of his property by his guardian is governed by Article 60 - To impeach the transfer of immovable property by the Guardian, the minor must file the Suit within the prescribed period of three years after attaining majority - We are of the considered opinion that a quondam minor plaintiff challenging the transfer of an immovable property made by his guardian in contravention of Section 8(1)(2) of the 1956 Act and who seeks possession of property can file the Suit only within the limitation prescribed under Article 60 of the Act and Articles 109, 110 or 113 of the Act are not applicable to the facts of the case. (2016)3 PLRSC 865

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Maharashtra Control of Organised Crime Act, 1999, Section 3  - Criminal Trial - The High Court was, therefore, right in holding that Section 3 of the MCOCA could not be invoked only on the basis of the previous charge sheets for Section 3 would come into play only if the respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA - Offences which the respondents are alleged to have committed after the promulgation of MCOCA were not proved against them -  Commission of offences prior to the enactment of MCOCA does not by itself constitute an offence under MCOCA . Held, Registration of cases, filing of charge sheets and taking of cognizance by the competent court in relation to the offence alleged to have been committed by the respondents in the past is but one of the requirements for invocation of Section 3 of the MCOCA. Continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. It is only if an organised crime is committed by the accused after the promulgation of MCOCA that he may, seen in the light of the previous charge sheets and the cognizance taken by the competent court, be said to have committed an offence under Section 3 of the Act. (2016)3 PLRSC 960

Maharashtra Rent Control Act, 1999 - In terms of Section 55(2) of the special law in the instant case, which is the Rent Control Act, the onus to get such a deed registered is on the landlord. (2016)3 PLRSC 57

Mens Rea - In taxing statutes  - There is a rebuttable presumption that mens rea is essential ingredient in every offence - For examining whether mens rea is essential for an offence created under a tax Statute, three factors require particular attention, (i) the object and scheme of the Statute; (ii) the language of the section; and (iii) the nature of penalty –  Appellant, in the eyes of the Authorities has submitted incorrect return leading to imposition of penalty in accordance with the relevant clauses - Considering that the situation of dispute arose on account of amendments in the Schedule in 1993 and was confined only to immediate two assessment years and also considering that the appellant had a good arguable case even in this Court which had stayed the penalty orders, we find that the return submitted by the appellant was on account of bona fide belief in correctness of appellant’s stand that the goods in question were chargeable only at the rate of 3% - In the facts of the case it would not be proper to hold that the appellant had submitted a return which was incorrect to its knowledge or belief - Only after the outcome of the legal dispute by virtue of this judgment, the authorities can be justified in holding henceforth that the return was incorrect - In such a situation it would not be just and proper exercise of discretion to hold the appellant guilty of submitting incorrect return so as to attract penalty for the same - Set aside the balance dues of penalty - Tamil Nadu General Sales Tax Act, 1959, Entry 14, 50 - Sales Tax. (2016)3 PLRSC 400

Mistake - Arithmetical mistake and Clerical mistake - An arithmetical mistake is a mistake in calculation, while a clerical mistake is a mistake of writing or typing error occurring due to accidental slip or omissions or error due to careless mistake or omission - Substituting different lands in place of the lands which have been notified by a statutory Notification under Section 10(1), 10(3) and 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 cannot and shall not be done by issuing a corrigendum unless the mandatory requirements contained in the aforementioned sections is complied with - A land holder cannot be divested from his land on the plea of clerical or arithmetical mistake liable to be corrected by issuing corrigendum - Urban Land (Ceiling and Regulation) Act, 1976, Section 10. (2016)3 PLRSC 265

Monopolies and Restrictive Trade Practices Act, 1969 - Contractual rate of interest - The MRTP Commission has clearly erred in interfering with the contractual rate of interest in absence of any finding against the actions and orders of the appellant -  Without returning a finding that there was any unfair trade practice or any restrictive/monopolistic trade practice pursuant to inquiry under the provisions of the Act, the Commission clearly erred in compensating the respondent with a higher rate of interest. (2016)3 PLRSC 954

Motor Vehicle Act, 1988 (59 of 1988)  - Claimant has right to recover the compensation from both or any one of the joint Tort feasors. (2016)3 PLRSC 609

Motor Vehicle Act, 1988 (59 of 1988) – Liability – Joint tort feasors - Suffice it to clarify that even if all the joint tort feasors are impleaded and both the drivers have entered the witness box and the tribunal or the court is able to determine the extent of negligence of each of the driver that is for the purpose of inter se liability between the joint tort feasors but their liability would remain joint and several so as to satisfy the plaintiff/claimant. (2016)3 PLRSC 609

Motor Vehicle Act, 1988 (59 of 1988) - Negligence  - Contributory and Composite negligence -  Difference between - In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons.     (2016)3 PLRSC 609

Motor Vehicle Act, 1988 (59 of 1988) - Tort Feasors  -  Joint Tort Feasors  -  Remedies available to one of the joint tort feasors from whom compensation has been recovered -  When the other joint tort feasor has not been impleaded, obviously question of negligence of non-impleaded driver could not be decided, apportionment of composite negligence cannot be made in the absence of impleadment of joint tort feasor -  It would be open to the impleaded joint tort feasors after making payment of compensation, so as to sue the other joint tort feasor and to recover from him the contribution to the extent of his negligence -  In case when both the tort feasors are before the court/tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tort feasor can recover the amount so determined from the other joint tort feasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them.Held, that what emerges from the aforesaid discussion is as follows : (i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.  (iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award. (2016)3 PLRSC 609

Motor Vehicle Act, 1988 (59 of 1988) - Whether for the drivers having licence to drive light motor vehicles there is a necessity of obtaining endorsement to drive the transport vehicle when the transport vehicle is of class of light motor vehicle - Following questions are required to be referred to larger Bench: 1. What is the meaning to be given to the definition of “light motor vehicle” as defined in section 2(21) of the MV Act ? Whether transport vehicles are excluded from it ? 2. Whether ‘transport vehicle’ and ‘omnibus’ the “gross vehicle weight” of either of which does not exceed 7500 kgs. would be a “light motor vehicle” and also motor-car or tractor or a road roller, “unladen weight” of which does not exceed 7500 kgs. and holder of licence to drive class of “light motor vehicle” as provided in section 10(2)(d) would be competent to drive a transport vehicle or omnibus, the “gross vehicle weight” of which does not exceed 7500 kgs. or a motor-car or tractor or road roller, the “unladen weight” of which does not exceed 7500 kgs. ? 3. What is the effect of the amendment made by virtue of Act No.54 of 1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained “medium goods vehicle”, “medium passenger motor vehicle”, “heavy goods vehicle” and “heavy passenger motor vehicle” by “transport vehicle”? Whether insertion of expression ‘transport vehicle’ under section 10(2)(e) is related to said substituted classes only or it also excluded transport vehicle of light motor vehicle class from purview of Sections 10(2)(d) and 2(41) of the Act? 4. What is the effect of amendment of the Form 4 as to operation of the provisions contained in section 10 as amended in the year 1994 and whether procedure to obtain driving licence for transport vehicle of class of “Light Motor Vehicle” has been changed ?   (2016)3 PLRSC 298

Motor Vehicles Act, 1998 (59 of 1988) -  Compensation - In the absence of any statutory and a straight jacket formula, there are bound to be grey areas despite several attempts made by this Court to lay down the guidelines - Compensation would basically depend on the evidence available in a case and the formulas shown by the courts are only guidelines for the computation of the compensation - That precisely is the reason the courts lodge a caveat stating “ordinarily”, “normally”, “exceptional circumstances”, etc., while suggesting the formula.  (2016)3 PLRSC 686

Motor Vehicles Act, 1998  (59 of 1988) - Deceased - Aged 30 years – Bachelor - Deduction of 50% towards the personal and living expenses – Future prospects 50% - Multiplier, in the case of the age of the deceased between 26 to 30 years is 17 -  Bachelor. (2016)3 PLRSC 686

N

Negotiable Instruments Act, 1881 (26 of 1881) Section 138  –  Accused disputed taking any loan from the complainant – Pleaded she never visited the place of complainant and never borrowed any money and claimed there were differences with the complainant in the year 2006 – That the cheque was given in the year 1999 as security - Cheque leaf itself mentioned the date in printed ink as “__/__/199__”  - Transaction was in 2006 - Cheque has not been disputed nor the signature of the defendant on it - Accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan,  the loan was repaid but the complainant did not return the security cheque - It may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason - Implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment – Conviction upheld.  (2016)3 PLRSC 536

Negotiable Instruments Act, 1881 (26 of 1881) Section 138  –  Security Cheque -  Cheque leaf itself mentioned the date in printed ink as “__/__/199__”  - Transaction was in 2006 - However, we are of the view that by itself, in absence of any other evidence, cannot be conclusive of the fact that the cheque was issued in 1999 -  The date of the cheque was as such 20/05/2006. (2016)3 PLRSC 536

Negotiable Instruments Act, 1881 (26 of 1881) Section 138 –  We see that from the bare text of the Section it has been stated clearly that the person, who draws a cheque on an account maintained by him, for paying the payee, alone attracts liability. (2016)3 PLRSC 794

Negotiable Instruments Act, 1881 (26 of 1881) Section 138 – Complaint had dealing with SI - Cheque was drawn by the accused in his individual capacity and not in the capacity as a Director of SI - Accused can be made liable under Section 138 of the NI Act, even though the Company had not been named in the notice or the complaint - There was no necessity for the appellant to prove that the said respondent was incharge of the affairs of the company, by virtue of the position he held - Thus, we hold that the respondent is liable for the offence under Section 138 of the NI Act. Held, The Respondent has adduced the argument that in the complaint the appellant has not taken the averment that the accused was the person incharge of and responsible for the affairs of the Company. However, as the respondent was the Managing Director of SI and sole proprietor of SB, there is no need of specific averment on the point. Thus, in the light of the position which the respondent in the present case held, we are of the view that the respondent be made liable under Section 138 of the NI Act, even though the Company had not been named in the notice or the complaint. There was no necessity for the appellant to prove that the said respondent was incharge of the affairs of the company, by virtue of the position he held. Thus, we hold that the respondent is liable for the offence under Section 138 of the NI Act.   (2016)3 PLRSC 794

Negotiable Instruments Act, 1881 (26 of 1881) Section 138 - In the complaint no averment that the accused was the person incharge of and responsible for the affairs of the Company - However, as the respondent was the Managing Director there is no need of specific averment on the point. (2016)3 PLRSC 794

Negotiable Instruments Act, 1881  (26 of 1881) Section 139  –  Burden of Proof - Since the cheque as well as the signature has been accepted by the accused respondent, the presumption under Section 139 would operate - Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability – Burden of proof had shifted on the accused which the accused failed to discharge. (2016)3 PLRSC 536

Notice issued by lawful authority – Non appearance - Commits an independent offence  - Dy. Chief Controller of Import and Export v. Roshan Lal Agarwal - The said case cannot be read as laying down a general statement of law that the prosecution of the accused, who is alleged to be guilty of an offence of not responding to the summons issued by a lawful authority for the purpose of either an inquiry or investigation into another substantive offence, would not be justified - Exonerating such an accused, who successfully evades the process of law and thereby commits an independent offence on the ground that he is found to be not guilty of the substantive offence would be destructive of law and order, apart from being against public interest - Such an exposition of law would only encourage unscrupulous elements in the society to defy the authority conferred upon the public servants to enforce the law with impunity. It is also possible, in certain cases that the time gained by such evasive tactics adopted by a person summoned itself would result in the destruction of the material which might otherwise constitute valuable evidence for establishing the commission of a substantive offence by such a recalcitrant accused.    Dy. Chief Controller of Import and Export v. Roshan Lal Agarwal, (2003) 4 SCC 139, Not good law. (2016)3 PLRSC 898

Nurses - Nurses who are working in private hospitals and nursing homes are not being treated fairly in the matter of their service conditions and pay - Central government will a Committee within four months from today -  Committee will make its recommendations, so as to do the needful for improvement of working conditions and pay of the nurses working in private hospitals and nursing homes within six months from its constitution, which can ultimately be given a form of legislation by the respondent-States or by the Central Government itself. (2016)3 PLRSC 223

 

P

Payment of Wages Act, 1936, Section 13A  - Employee’s Compensation Act, 1923 – Wages - Neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident -  Deceased was a highly skilled workman and would often be required to undertake long journeys outside the state in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit - Wages of the deceased were accepted as Rs.4,000/- per month + daily bhatta of Rs.6,000/- per month –  Under the Payment of Wages Act, 1936, Section 13A, the onus is on the employer to maintain the register and records of wages - Since the employer has failed in his duty to maintain the proper records of wages of the deceased, the appellants cannot be made to suffer for it. (2016)3 PLRSC 243

Penalty - Tax – Even if minimum penalty is prescribed, the authority may be justified in refusing to impose any penalty in some peculiar situations, such as, where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the Statute.  M/s Hindustan Steel Ltd. v. State of Orissa, (1969) 2 SCC 627 relied. Commissioner of Sales Tax, Uttar Pradesh v. Sanjiv Fabrics, (2010) 9 SCC 630 relied. (2016)3 PLRSC 400

Personal liberty versus Public good - Sahara Case - This Court feels concerned with the fact that three persons are deprived of their liberty for the last fifteen months and this situation is quite onerous to them - On the other hand, public interest as well as public good demands that the two Sahara Companies, which had collected whopping amount of more than Rs. 22,000 crores from the public in an illegal and unauthorised manner, are made accountable for the same - By any yardstick, this is a huge liability, which the contemnors are bound to discharge by depositing the same with SEBI - It is, thus, an unprecedented situation of personal liberty of the three applicants on the one hand vis a vis majesty of law and ensuring larger public good, on the other hand - It is this sense of justice, in an  unprecedented kind of situation, that has compelled the Court to take such an extreme step - It is this legal realism which has compelled the Court to adopt an approach which sounds more pragmatic - It is “doing what comes naturally” approach to the problem at hand, which required such a drastic step, going by the experience of this case, giving rise to 'Reflection' that provided 'Understanding'. Held, This case is a burning example where the true dictate of justice is difficult to discern, and the law needed to come down on the side of practical convenience. We may borrow the jurisprudential theory propounded by Ronald Dworkin, albeit in somewhat different context, viz. the “conventional jurisprudential wisdom” which holds that in certain cases of a particularly complex or novel character the law does not provide a definite answer. In denying that judges in hard cases have a discretion to determine what the law is, Dworkin has instead argued for the judicial use of public standards or principles in a way that is capable of providing the right legal answer. The process of reaching a right answer in hard cases obviously differs from the process of reaching the legal answer in easy cases. After all, the avowed objective of rule of law is also to ensure that the orders of this Court are respected and obeyed. Therefore, its a classic  case where the approach adopted is influenced by the necessity of “making the law work”. Therefore, the orders passed may not be strictly construed as arising out of contempt jurisdiction, but in exercise of inherent jurisdiction vested in this Court to do complete justice in the matter and to ensure that the applicants render full compliance of its orders. It's the unprecedented situation which has led to passing of unprecedented, but justifiable, orders. (2016)3 PLRSC 752

Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996 , Section 73 Sub-sections (1) and (2)  -  Disability certificate is required to be issued by Medical Board - Illegal usurpation of the quota reserved for specially abled by large number of persons who were not in fact specially abled and have procured certificates fraudulently - 21% of selected candidates of handicapped category were found to be fraudulent - Fraud vitiates and in such a case when large number of candidates have illegally usurped the reserved seats of the persons suffering from disability the action of State Government did not call for interference - High Court has issued a direction in the impugned order for physical verification of the candidate by the authorities and in case he does not suffer from disability so certified candidate can be subjected to fresh medical test - High Court has overlooked that on mere physical verification it may not be possible to know various kinds of disabilities such as that of eyes, ear impairment etc. - That can only be done by the medical examination. (2016)3 PLRSC 228

Petrol Pump  - Grant of dealership in favour of the appellant was cancelled by the Committee and that received the stamp of approval of Apex Court – Question that once the dealership is cancelled, the land owner who had parted with the land by way of a long-term lease for a period of thirty years, can be allowed to retain possession over the land; and only the super structure which had been affixed on the land by the Corporation, can only be removed - On a plain reading of the aforesaid agreement, it is clear as noon day that it has no connection whatsoever with the lease agreement - Both the agreements are independent of each other - The appellant was a dealer under the lessee, that is, the Corporation - The dealership is liable to be cancelled on many a ground - In case there is a termination, dealership is bound to be cancelled and at that juncture, if the lease deed is treated to have been terminated along with the dealership, it will lead to a situation which does not flow from the interpretation of the instruments -  The inevitable consequence of that is the appellant has to vacate the premises and the Corporation has the liberty to operate either independently or through another dealer - The appellant cannot be allowed to cause obstruction or create an impediment. (2016)3 PLRSC 752

Power of Attorney Act, 1982  - Power of attorney - Is governed by the provisions of the Power of Attorney Act, 1982 -  An agent acting under a power of attorney always acts, as a general rule, in the name of his principal -  Any document executed or thing done by an agent on the strength of power of attorney is as effective as if executed or done in the name of principal, i.e., by the principal himself -  An agent, therefore, always acts on behalf of the principal and exercises only those powers, which are given to him in the power of attorney by the principal - Any act or thing done by the agent on the strength of power of attorney is, therefore, never construed or/and treated to have been done by the agent in his personal capacity so as to create any right in his favour but is always construed as having done by the principal himself - An agent, therefore, never gets any personal benefit of any nature - When D, who was acting as an agent of A on the strength of power of attorney, executed the tenancy agreement with respondent No. 1 in relation to the suit premises then he did such execution for and behalf of his principal - A, which resulted in creating a relationship of landlord and tenant between A. and respondent No. 1 in relation to the suit premises - In this execution, D being an agent did not get any right, title and interest of any nature either in the suit premises or in tenancy in himself - The effect of execution of tenancy agreement by an agent was as if A. himself had executed with respondent No.1 – No tenancy created with D. (2016)3 PLRSC 181

Prevention of Corruption Act, 1988 Sections 13(1)(d) read with 13(2), Section 15  read with Section 120B of the IPC –    Release of land from acquisition – Subsequently agreements for sale of certain parcels were said to have been executed - Though the intending purchasers in said four agreements were stated to be the appellants herein, the agreements in question were not signed by the appellants - The agreements were signed only by the prospective vendors namely, the owners of the land – FIR lodged by the Lokayukta that land was released conferring undue advantage upon the owners of the land under under provisions of the Prevention of Corruption Act, 1988 read with Section 120B of the IPC –  Agreements relied upon by the prosecution do not bear the signatures of the appellants - True that in Aloka Bose v. Parmatma Devi , it has been observed that an agreement of sale signed by the vendor alone is enforceable by the purchaser named in the agreement -  Question here is whether the appellants could be said to be involved in the conspiracy -  The agreements in question were not even recovered from the custody of the appellants and were recovered from the vendors themselves - Agreements being unilateral and not bearing the signatures of the appellants, mere execution of such agreements cannot be considered as a relevant circumstance against the appellants -  Nothing on record to indicate that the consideration mentioned in the agreement could be traced to the appellants, nor is there any statement by any of the witnesses suggesting even proximity or meeting of minds between the appellants and any of the other accused - High Court was not justified in setting aside the order passed by the Special Judge. (2016)3 PLRSC 368

Principle of interpretation  - It is well settled principle of interpretation that inconvenience and hardship to a person will not be the decisive factors while interpreting the provision - When bare reading of the provision makes it very clear and unequivocally gives a meaning it was to be interpreted in the same sense as the Latin maxim says "dulo lex sed lex", which means the law is hard but it is law and there cannot be any departure from the words of the law.  Held, The High Court as well as the Trial Court erred in applying Article 109 of the Limitation Act, where Article 109 of the Act clearly speaks about alienation made by father governed by Mitakshara law and further Courts below proceeded in discussing about the long rope given under Article 109 of the Limitation Act of 12 years and comparatively lesser time of 3 years specified under Article 60 of the Act. (2016)3 PLRSC 865

Promissory Estoppel - An equitable doctrine that would yield when equity so required - That the same had been evolved to avoid injustice where it is demonstrated that a party acting on the words or conduct of another, amounting to clear and unequivocal promise and intended to create legal relations or effect legal relationships to arise in the future had altered his position, then the promise would be binding on the promisor and he would not be permitted to renege therefrom unless it would be inequitable to compel him to do so - While extending this doctrine to the Government as well, it was enunciated that if it can be shown that having regard to the facts as had subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise the equity in favour of the promisee and enforce the promise against the Government - The doctrine of the promissory estoppel would be displaced in such a case, because on the facts, equity would not require that the Government should be held bound by the promise made by it - That aside overriding public interest against enforcement of the doctrine qua the Government, it would be still competent for it to depart from the promise on giving reasonable notice which need not be a formal one, affording the promisee a reasonable opportunity of resuming his position was underlined. (2016)3 PLRSC 573

Public Premises (Eviction of Unauthorised Occupants) Act, 1971, S. 17  – Indian Oil Corporation - That the 1971 Act would not be applicable has really no force - Admittedly, the respondent is a public sector undertaking - The appellant whose dealership has been cancelled, cannot claim possession to retain possession on the basis of ownership of the land as the lease is in continuance - Therefore, he is a trespasser. Thus, the provisions of the 1971 Act apply on all fours and accordingly we repel the said submission. (2016)3 PLRSC 752

Punjab General Sales Tax Act, 1948, Section 11(10) - Section 11(3) of the Act, time-limit for completing the assessment provided therein is three years from the end of the year - Assessing Officer, however, sent notices to the respondent-assessee for the respective Assessment Years, after the expiry of three years  - Extension of time for assessment has the effect of enlarging the period of limitation and, therefore, once the period of limitation expires, the immunity against being subject to assessment sets in and the right to make assessment gets extinguished - Therefore, there would be no question of extending the time for assessment when the assessment has already become time barred - A valuable right has also accrued in favour of the assessee when the period of limitation expires - If the Commissioner is permitted to grant the extension even after the expiry of original period of limitation prescribed under the Act, it will give him right to exercise such a power at any time even much after the last date of assessment - Section 10(11)  has to be interpreted in the manner which is equitable to both the parties - Therefore, the only way to interpret the same is that by holding that power to extend the time is to be exercised before the normal period of assessment expires.  Held, In the instant appeals itself, when the last dates of assessment were 30th April, 2004, 30th April, 2005, 30th April, 2006 and 30th April, 2007, order extending the time under Section 11(10) of the Act were passed on August 17, 2007, August 17, 2007, August 17, 2007 and May 25, 2007 respectively. Thus, for the Assessment Year 2000-2001, order of extension is passed more than three years after the last date and for the Assessment Year 2001-2002, it is more than two years after the last date. Such a situation cannot be countenanced as rightly held by the High Court. When the last date of assessment in respect of these Assessment Years expired, it vested a valuable right in the assessee which cannot be lightly taken away. (2016)3 PLRSC 427

R

Ratio decidendi - Random sentences have been picked up from the judgment and used, without any attempt to understand the true purport of the judgment in its entirety - It is a well settled position of law that a word or sentence cannot be picked up from a judgment to construe that it is the ratio decidendi on the relevant aspect of the case -  It is also a well settled position of law that a judgment cannot be read as a statute and interpreted and applied to fact situations. (2016)3 PLRSC 57

Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 - Sick Industrial Companies (Special Provisions) Act, 1985  Section 22  - Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 -  SICA will continue to apply in the case of unsecured creditors seeking to recover their debts from a sick industrial company -  Sick Industrial Companies (Special Provisions) Act, 1985 overrides the provisions of the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. (2016)3 PLRSC 123

Rent – Eviction petition - It is not necessary to implead all the co-owners in the eviction petition - Dhannalal v. Kalawatibai and Others, (2002) 6 SCC 16 followed . (2016)3 PLRSC 181

Rent act - Maharashtra Rent Control Act, 1999 - In terms of Section 55(2) of the special law in the instant case, which is the Rent Control Act, the onus to get such a deed registered is on the landlord. (2016)3 PLRSC 57

Right of legal remedy - A right to prosecute the legal remedy in the court of law to challenge any decision of the State or/and its agency is a valuable legal right of the citizen and the High Court could not take away such right from the appellant without assigning any reason -  High Court while disposing of the appellant’s writ petition granted liberty to file representation to the NTPC but at the same time ordered that appellants will have no liberty to move the High Court again for the same cause of action raised therein -  High Court having rightly granted indulgence to the appellant to file the representation to the NTPC for ventilating his grievance, should have also granted liberty to the appellant to take recourse to all legal remedies to challenge the decision once taken on his representation, if occasion so arises - No justifiable reason to deny the appellant from taking recourse to the legal remedies to prosecute his grievance in a Court of law in relation to the dispute, which is the subject matter of the representation in case if occasion arises in future. (2016)3 PLRSC 411

Right to information Act, 2005  (22 of 2005) -  Disclosure of names of examiners who have evaluated the answer-sheet -  Public Service Commission (PSC) has taken upon itself in appointing the examiners to evaluate the answer papers and as such, the PSC and examiners stand in a principal-agent relationship -  PSC is in the shoes of a Principal has entrusted the task of evaluating the answer papers to the Examiners -  Examiners in the position of agents are bound to evaluate the answer papers as per the instructions given by the PSC -  As a result, a fiduciary relationship is established between the PSC and the Examiners - Therefore, any information shared between them is not liable to be disclosed.        (2016)3 PLRSC 259

Right to information Act, 2005  (22 of 2005) -  Disclosure of names of examiners who have evaluated the answer-sheet -  Don’t see any logical reason as to how this will benefit him or the public at large -  Disclosure of the identity of Examiners is in the least interest of the general public and also any attempt to reveal the examiner’s identity will give rise to dire consequences - Commission has reposed trust on the examiners that they will check the exam papers with utmost care, honesty and impartially and, similarly, the Examiners have faith that they will not be facing any unfortunate consequences for doing their job properly - If we allow disclosing name of the examiners in every exam, the unsuccessful candidates may try to take revenge from the examiners for doing their job properly - May, further, create a situation where the potential candidates in the next similar exam, especially in the same state or in the same level will try to contact the disclosed examiners for any potential gain by illegal means in the potential exam. (2016)3 PLRSC 259

Right to information Act, 2005  (22 of 2005) – Candidates application for information of answer sheets and details of the interview marks can be and should be provided - It is not something which a public authority keeps it under a fiduciary capacity - Disclosing the marks and the answer sheets to the candidates will ensure that the candidates have been given marks according to their performance in the exam -  Will ensure a fair play in this competitive environment, where candidate puts his time in preparing for the competitive exams. (2016)3 PLRSC 259

S

Sale  - Creation of third party interest or arrangement by way of agreement for sale is different from sale – F entered into an agreement with S for sale of the mortgaged property mortgaged to  Bank  - Possession of the mortgaged property has not been delivered to F by the bank – Sale not complete – OTS. (2016)3 PLRSC 879

Sales Tax – Mens Rea in taxing statutes  - There is a rebuttable presumption that mens rea is essential ingredient in every offence - For examining whether mens rea is essential for an offence created under a tax Statute, three factors require particular attention, (i) the object and scheme of the Statute; (ii) the language of the section; and (iii) the nature of penalty –  Appellant, in the eyes of the Authorities has submitted incorrect return leading to imposition of penalty in accordance with the relevant clauses - Considering that the situation of dispute arose on account of amendments in the Schedule in 1993 and was confined only to immediate two assessment years and also considering that the appellant had a good arguable case even in this Court which had stayed the penalty orders, we find that the return submitted by the appellant was on account of bona fide belief in correctness of appellant’s stand that the goods in question were chargeable only at the rate of 3% - In the facts of the case it would not be proper to hold that the appellant had submitted a return which was incorrect to its knowledge or belief - Only after the outcome of the legal dispute by virtue of this judgment, the authorities can be justified in holding henceforth that the return was incorrect - In such a situation it would not be just and proper exercise of discretion to hold the appellant guilty of submitting incorrect return so as to attract penalty for the same - Set aside the balance dues of penalty - Tamil Nadu General Sales Tax Act, 1959, Entry 14, 50. (2016)3 PLRSC 400

Sea Customs Act – Exoneration in related adjudication proceedings and the effect thereof on criminal proceedings  - Plea that the finding of the Collector of Customs that the accused are not proved to be guilty operated as estoppel in the criminal case against the accused - Adjudicating proceedings were initiated pursuant to the show cause notice and Order was passed by the Additional Commissioner of Customs imposing penalty on the accused - Commissioner of Customs (Appeal) set aside the penalty - Petition under Section 482 of the Criminal Procedure Code filed seeking quashing - Exoneration of the respondent in the adjudication proceedings was the basis for petition under Section 482 Cr.P.C. – Accused was declared “proclaimed offender”  - Accused was declared a proclaimed offender and had not participated in any of the proceedings personally - In the circumstances no weightage could be given to copies of the passport submitted in support of the assertion that he had not visited India - Statement of VS did allege the involvement of the respondent - In law, if such statement is otherwise admissible and reliable, conviction can lawfully rest on such material – Quashing order passed by High Court set aside - Constitution of India, Article 20(2). (2016)3 PLRSC 359

SEBI Act  Section 15A, 15J  - Whether the expression “namely” fixes the discretion which can be exercised only in the circumstances mentioned in the three clauses set out in Section 15J, or whether it would also take into account other relevant circumstances, having particular regard to the fact that it is a penalty provision that the Court is construing -  Find it a little difficult to accept what is stated in paragraph 5 of SEBI Through its Chairman versus Roofit Industries Limited, 2015 (12) SCALE 642- Refer it to a larger Bench for such authoritative pronouncement. (2016)3 PLRSC 474

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 S. 35 – If we accept the legal submissions made on behalf of the Banks to hold that the provisions of SARFAESI Act override the provisions of the various Rent Control Acts to allow a Bank to evict a tenant from the tenanted premise, which has become a secured asset of the Bank after the default on loan by the landlord and dispense with the procedure laid down under the provisions of the various Rent Control Acts  - Then the legislative powers of the state legislatures are denuded which would amount to subverting the law enacted by the State Legislature-  It would not only tantamount to violation of rule of law, but would also render a valid Rent Control statute enacted by the State Legislature in exercise of its legislative power under Article 246 (2) of the Constitution of India useless and nugatory  - Constitution of India envisages a federal feature, which has been held to be a basic feature of the Constitution - Constitution of India, Article 246 (2).  (2016)3 PLRSC 57

 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Rent Act  -  SARFAESI Act enacted under List I of the Constitution of India thus, seeks to regulate asset recovery by the Banks -  From a perusal of the Statements of Objects and Reasons of the Rent Control Act and the SARFAESI Act that the two Acts are meant to operate in completely different spheres - So far as residential tenancy rights are concerned, they are governed by the provisions of the Rent Control Act which occupies the field on the subject - Maharashtra Rent Control Act, 1999. (2016)3 PLRSC 57

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Lease rights  - Rent Act  -  Leasehold rights being created after the property has been mortgaged to the bank - Consent of the creditor needs to be taken - We have not stated anything to the effect that the tenancy created after mortgaging the property must necessarily be registered under the provisions of the Registration Act and the Stamp Act. (2016)3 PLRSC 57

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Rent Act  -  There is an interest of the bank in recovering the Non Performing Asset on the one hand, and protecting the right of the blameless tenant on the other - Rent Control Act being a social welfare legislation, must be construed as such - A landlord cannot be permitted to do indirectly what he has been barred from doing under the Rent Control Act, more so when the two legislations, that is the SARFAESI Act and the Rent Control Act operate in completely different fields - While SARFAESI Act is concerned with Non Performing Assets of the Banks, the Rent Control Act governs the relationship between a tenant and the landlord and specifies the rights and liabilities of each as well as the rules of ejectment with respect to such tenants. The provisions of the SARFAESI Act cannot be used to override the provisions of the Rent Control Act - Decision rendered in the case of Harshad Govardhan Sondagar (supra) cannot be understood to have held that the provisions of the SARFAESI Act override the provisions of the Rent Control Act, and that the Banks are at liberty to evict the tenants residing in the tenanted premises which have been offered as collateral securities for loans on which default has been done by the debtor/landlord. Held,If the contentions of the learned counsel for the respondent Banks are to be accepted, it would render the entire scheme of all Rent Control Acts operating in the country as useless and nugatory. Tenants would be left wholly to the mercy of their landlords and in the fear that the landlord may use the tenanted premises as a security interest while taking a loan from a bank and subsequently default on it. Conversely, a landlord would simply have to give up the tenanted premises as a security interest to the creditor banks while he is still getting rent for the same. In case of default of the loan, the maximum brunt will be borne by the unsuspecting tenant, who would be evicted from the possession of the tenanted property by the Bank under the provisions of the SARFAESI Act. Under no circumstances can this be permitted, more so in view of the statutory protections to the tenants under the Rent Control Act and also in respect of contractual tenants along with the possession of their properties which shall be obtained with due process of law.  (2016)3 PLRSC 57

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Rent Act - Maharashtra Rent Control Act, 1999,   Section 14 - Transfer of Property Act, 1882, Section 106 - Effect of non-registration, or the creation of tenancy by way of an oral agreement  -  If no written lease deed exists, then such tenants are required to prove that they have been in occupation of the premises as tenants by producing such evidence in the proceedings under Section 14 of the SARFAESI Act before the learned Magistrate - In terms of Section 55(2) of the Maharashtra Rent Control Act, 1999 in the instant case, , the onus to get such a deed registered is on the landlord - Neither the landlord nor the banks can be permitted to exploit the fact of non registration of the tenancy deed against the tenant.  (2016)3 PLRSC 57

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002,  Section 35  - A non obstante clause (Section 35 of the SARFAESI Act) cannot be used to bulldoze the statutory rights vested on the tenants under the Rent Control Act - The expression 'any other law for the time being in force' as appearing in Section 35 of the SARFAESI Act cannot mean to extend to each and every law enacted by the Central and State legislatures - It can only extend to the laws operating in the same field - Once tenancy is created, a tenant can be evicted only after following the due process of law, as prescribed under the provisions of the Rent Control Act - A tenant cannot be arbitrarily evicted by using the provisions of the SARFAESI Act as that would amount to stultifying the statutory rights of protection given to the tenant. (2016)3 PLRSC 57

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – Section 35, 37  - Section 35 of the SARFAESI is not made subject to Section 37 of the said Act -  This statutory scheme is at complete variance with the statutory scheme contained in Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 in which sub-section (1) of Section 34 containing the non obstante clause is expressly made subject to sub-section (2) (containing the Sick Industrial Companies (Special Provisions) Act, 1985) by the expression “save as provided under sub-section (2)”  -  the two apparently conflicting Sections can best be harmonized by giving meaning to both - This can only be done by limiting the scope of the expression “or any other law for the time being in force” contained in Section 37 - This expression will therefore have to be held to mean other laws having relation to the securities market only, as the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is the only other special law, apart from the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, dealing with recovery of debts due to banks and financial institutions. On this interpretation also, the Sick Industrial Companies (Special Provisions) Act, 1985 will not be included for the obvious reason that its primary objective is to rehabilitate sick industrial companies and not to deal with the securities market. (2016)3 PLRSC 123

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 –  Sick Industrial Companies (Special Provisions) Act, 1985 -  Where secured creditors representing not less than 75 per cent in value of the amount outstanding against financial assistance decide to enforce their security under the SARFAESI Act, 2002, any reference pending under the Sick Industrial Companies (Special Provisions) Act, 1985 cannot be proceeded with further – the proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985 will abate. (2016)3 PLRSC 123

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -   Sick Industrial Companies (Special Provisions) Act, 1985 - Where a secured creditor of a sick industrial company seeks to recover its debt in the manner provided by Section 13(2) of SARFAESI Act, 2002, such secured creditor may realise such secured debt under Section 13(4) of the SARFAESI Act, 2002, notwithstanding the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. (2016)3 PLRSC 123

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002  Sick Industrial Companies (Special Provisions) Act, 1985 -  In a situation where there are more than one secured creditor of a sick industrial company or it has been jointly financed by secured creditors, and at least 60 per cent of such secured creditors in value of the amount outstanding as on a record date do not agree upon exercise of the right to realise their security under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 will continue to have full play. Held, Where, under Section 13(9) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in the case of a sick industrial company having more than one secured creditor or being jointly financed by secured creditors representing 60 per cent or more in value of the amount outstanding as on a record date wish to exercise their rights to enforce their security under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, being inconsistent with the exercise of such rights, will have no play. (2016)3 PLRSC 123

Service Matter - Departmental inquiry – Documents not provided  - No documents were supplied to the respondent along with the charge-sheet on the basis of which charges were framed -  Some of the documents were given during departmental inquiry, but relevant documents on the basis of which findings were recorded were not made available to the respondent -  It further appears that the list of documents and witnesses were also not supplied and some of the documents were produced during the course of inquiry -   Show cause notice was served along with 17 charges, but all the documents were not supplied to the respondent - Order of punishment cannot be sustained in law - Respondent was out of employment since 1991, a lump sum payment of Rs.5,00,000/- towards the salary would meet the ends of justice . (2016)3 PLRSC 109

Sick Industrial Companies (Special Provisions) Act, 1985 -  Securitisation andReconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -    In a situation where there are more than one secured creditor of a sick industrial company or it has been jointly financed by secured creditors, and at least 60 per cent of such secured creditors in value of the amount outstanding as on a record date do not agree upon exercise of the right to realise their security under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 will continue to have full play. Held, Where, under Section 13(9) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in the case of a sick industrial company having more than one secured creditor or being jointly financed by secured creditors representing 60 per cent or more in value of the amount outstanding as on a record date wish to exercise their rights to enforce their security under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985, being inconsistent with the exercise of such rights, will have no play. (2016)3 PLRSC 123

Sick Industrial Companies (Special Provisions) Act, 1985 – Non obstante clause – SICA prevails in all situations where there are earlier enactments with non obstante clauses similar to the Sick Industrial Companies (Special Provisions) Act, 1985 -  Where there are later enactments with similar non obstante clauses, the Sick Industrial Companies (Special Provisions) Act, 1985 has been held to prevail only in a situation where the reach of the non obstante clause in the later Act is limited – such as in the case of the Arbitration and Conciliation Act, 1996 – or in the case of the later Act expressly yielding to the Sick Industrial Companies (Special Provisions) Act, 1985, as in the case of the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 -  Where such is not the case, as in the case of Special Courts Act, 1992, it is the Special Courts Act, 1992 which was held to prevail over the Sick Industrial Companies (Special Provisions) Act, 1985. Held, Section 37 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 does not include the Sick Industrial Companies (Special Provisions) Act, 1985 unlike Section 34(2) of the Recovery of Debts Due To Banks and Financial Institutions Act, 1993 - Section 37 of SARFAESI states that the said Act shall be in addition to and not in derogation of four Acts, namely, the Companies Act, the Securities Contracts (Regulation) Act, 1956, the Securities and Exchange Board of India Act, 1992 and the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. It is clear that the first three Acts deal with securities generally and the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 deals with recovery of debts due to banks and financial institutions. Interestingly, Section 41 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 makes amendments in three Acts – the Companies Act, the Securities Contracts (Regulation) Act, 1956, and the Sick Industrial Companies (Special Provisions) Act, 1985. It is of great significance that only the first two Acts are included in Section 37 and not the third i.e. the Sick Industrial Companies (Special Provisions) Act, 1985. This is for the obvious reason that the framers of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 intended that the Sick Industrial Companies (Special Provisions) Act, 1985 be covered by the non obstante clause contained in Section 35,and not by the exception thereto carved out by Section 37. Further, whereas the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is expressly mentioned in Section 37, the Sick Industrial Companies (Special Provisions) Act, 1985 is not, making the above position further clear. And this is in stark contrast, as has been stated above, to Section 34(2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, which expressly included the Sick Industrial Companies (Special Provisions) Act, 1985. The new legislative scheme qua recovery of debts contained in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has therefore to be given precedence over the Sick Industrial Companies (Special Provisions) Act, 1985, unlike the old scheme for recovery of debts contained in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. (2016)3 PLRSC 123

Sick Industrial Companies (Special Provisions) Act, 1985, Section 15(1) proviso 3, S. 16  - Expression “where a reference is pending” would necessarily include the inquiry stage before the Board under Section 16 of the Act -  Reference can be said to be pending not only when an inquiry is instituted, but also after preparation and sanction of a scheme right till the stage the scheme has worked out successfully or till the BIFR gives its opinion to wind up the company. (2016)3 PLRSC 123

Sick Industrial Companies (Special Provisions) Act, 1985, Section 15(1) proviso 3, Section 20   - The expression “reference” used in Section 15(1) proviso 3 is used in contra distinction to the expression “proceedings” in Section 22 - “Proceedings” under Section 22 are actions taken against the sick company, whereas “references” are actions initiated by a sick company. (2016)3 PLRSC 123

Sick Industrial Companies (Special Provisions) Act, 1985, Section 15(1) proviso 3 - Meaning of the expression “such reference shall abate” - One obvious way that a reference abates is where the Board, after inquiry, rejects the reference for the reason that the Board is satisfied that the Company is not a sick industrial company as defined under the Act -  Another way in which a reference can abate is where a scheme is implemented successfully, and the sick industrial company is taken out of the woods successfully - A third manner in which a reference can abate is when a scheme or schemes have failed in respect of the sick industrial company, and in the opinion of the BIFR, the said Company ought to be wound up - A fourth instance of abatement is provided by the third proviso to Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 -  And that is that a reference which is pending shall abate if the secured creditors of not less than 3/4th in value of the amount outstanding against the financial assistance disbursed to the borrower, have taken measures to recover secured debts under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 – The legislature has inserted this provision so that, if 3/4th or more of the secured creditors get together to take measures under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, they will not be thwarted by the provisions of Section 22 of Sick Industrial Companies (Special Provisions) Act, 1985, and it will not be necessary for them to obtain BIFR permission before taking any such measures. (2016)3 PLRSC 123

Sick Industrial Companies (Special Provisions) Act, 1985  Section 22  - Recovery Of Debts Due To Banks And Financial Institutions Act, 1993 -  SICA will continue to apply in the case of unsecured creditors seeking to recover their debts from a sick industrial company -  Sick Industrial Companies (Special Provisions) Act, 1985 overrides the provisions of the Recovery Of Debts Due To Banks And Financial Institutions Act, 1993. (2016)3 PLRSC 123

Sick Industrial Companies (Special Provisions) Act, 1985 Section 22  - Where an eviction petition is filed under a State Rent Act for eviction on the ground of non-payment of rent - Such eviction petitions have been held not to be suits for recovery of money - Consequently, Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 shall not apply - Gujarat Steel Tube Co. Ltd. v. Virchandbhai B. Shah, (1999) 8 SCC P.11 referred to. (2016)3 PLRSC 123

Sick Industrial Companies (Special Provisions) Act, 1985, Section 22 - Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 -   Sick Industrial Companies (Special Provisions) Act, 1985 - Where a secured creditor of a sick industrial company seeks to recover its debt in the manner provided by Section 13(2) of SARFAESI Act, 2002, such secured creditor may realise such secured debt under Section 13(4) of the SARFAESI Act, 2002, notwithstanding the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985. (2016)3 PLRSC 123

Specific Relief Act  - Jurisdiction to order specific performance of contract is based on the existence of a valid and enforceable contract - Where a valid and enforceable contract has not been made, the Court will not make a contract for them - Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable - The discretion of the Court will not be there even though the contract is otherwise valid and enforceable. (2016)3 PLRSC 273

Specific Relief Act  - Suit for specific performance - Suit filed on the basis of a “receipt + agreement” - Decision taken by the Development Authority for allotment of a plot in favour of the defendant - In the year 1995 the defendant had desired to sell his right in the said recommendation letter which was to be allotted by the DDA  - Defendant agreed to sell his right in the aforesaid recommendation letter and the plot to be allotted at a price of Rs.4,60,000/- - During the pendency of the lis DDA allotted the plot in question in favour of the defendant by executing a lease deed putting a condition that the plot in question will remain non-transferable for a period of ten years – Decree for specific performance of “receipt + agreement” cannot be passed. (2016)3 PLRSC 273

T

Tamil Nadu General Sales Tax Act, 1959, Entry 14, 50 - Sales Tax – Mens Rea in taxing statutes  - There is a rebuttable presumption that mens rea is essential ingredient in every offence - For examining whether mens rea is essential for an offence created under a tax Statute, three factors require particular attention, (i) the object and scheme of the Statute; (ii) the language of the section; and (iii) the nature of penalty –  Appellant, in the eyes of the Authorities has submitted incorrect return leading to imposition of penalty in accordance with the relevant clauses - Considering that the situation of dispute arose on account of amendments in the Schedule in 1993 and was confined only to immediate two assessment years and also considering that the appellant had a good arguable case even in this Court which had stayed the penalty orders, we find that the return submitted by the appellant was on account of bona fide belief in correctness of appellant’s stand that the goods in question were chargeable only at the rate of 3% - In the facts of the case it would not be proper to hold that the appellant had submitted a return which was incorrect to its knowledge or belief - Only after the outcome of the legal dispute by virtue of this judgment, the authorities can be justified in holding henceforth that the return was incorrect - In such a situation it would not be just and proper exercise of discretion to hold the appellant guilty of submitting incorrect return so as to attract penalty for the same - Set aside the balance dues of penalty. (2016)3 PLRSC 400

Title – Adverse possession - Claim of title to the property and adverse possession are in terms contradictory. Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 relied. (2016)3 PLRSC 801

Tort Feasors  -  Joint Tort Feasors  -  Remedies available to one of the joint tort feasors from whom compensation has been recovered -  When the other joint tort feasor has not been impleaded, obviously question of negligence of non-impleaded driver could not be decided, apportionment of composite negligence cannot be made in the absence of impleadment of joint tort feasor -  It would be open to the impleaded joint tort feasors after making payment of compensation, so as to sue the other joint tort feasor and to recover from him the contribution to the extent of his negligence -  In case when both the tort feasors are before the court/tribunal, if evidence is sufficient, it may determine the extent of their negligence so that one joint tort feasor can recover the amount so determined from the other joint tort feasor in the execution proceedings, whereas the claimant has right to recover the compensation from both or any one of them – Motor Vehicle Act .Held, that what emerges from the aforesaid discussion is as follows : (i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.  (iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award. (2016)3 PLRSC 609

Trade Marks Act, section 134 -  It was also submitted that as the bulk of litigation of such a nature is filed at Delhi and lawyers available at Delhi are having expertise in the matter, as such it would be convenient to the parties to contest the suit at Delhi - Such aspects are irrelevant for deciding the territorial jurisdiction - It is not the convenience of the lawyers or their expertise which makes out the territorial jurisdiction - Copyright Act, Section 62 . (2016)3 PLRSC 915

Trade Marks Act, section 134 - In a case where cause of action has arisen at a place where the plaintiff is residing or where there are more than one such persons, any of them actually or voluntarily resides or carries on business or personally works for gain would oust the jurisdiction of other place where the cause of action has not arisen though at such a place, by virtue of having subordinate office, the plaintiff instituting a suit or other proceedings might be carrying on business or personally works for gain – Head office of complainant at Mumbai, Offence at Mumbai, New Delhi where subordinate office is situated shall not have jurisdiction - CPC Section 20 - Copyright Act, Section 62 . (2016)3 PLRSC 915

Transfer of Property Act, 1882, Section 106 - Effect of non-registration, or the creation of tenancy by way of an oral agreement  - Section 106 of the Transfer of Property Act, 1882 does provide for registration of leases which are created on a year to year basis -According to Section 106 a monthly tenancy shall be deemed to be a tenancy from month to month and must be registered if it is reduced into writing - Act however, remains silent on the position of law in cases where the agreement is not reduced into writing - If the two parties are executing their rights and liabilities in the nature of a landlord-tenant relationship and if regular rent is being paid and accepted, then the mere factum of non­-registration of deed will not make the lease itself nugatory. (2016)3 PLRSC 57

U

Urban Land (Ceiling and Regulation) Act, 1976 Sections 8, 9 and 10 -  the provisions contained in Sections 8, 9 and 10 have to be mandatorily complied with before the land is declared in excess of the ceiling limit. (2016)3 PLRSC 265

Urban Land (Ceiling and Regulation) Act, 1976, Section 10 - Arithmetical mistake and Clerical mistake - An arithmetical mistake is a mistake in calculation, while a clerical mistake is a mistake of writing or typing error occurring due to accidental slip or omissions or error due to careless mistake or omission - Substituting different lands in place of the lands which have been notified by a statutory Notification under Section 10(1), 10(3) and 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 cannot and shall not be done by issuing a corrigendum unless the mandatory requirements contained in the aforementioned sections is complied with - A land holder cannot be divested from his land on the plea of clerical or arithmetical mistake liable to be corrected by issuing corrigendum. (2016)3 PLRSC 265

V

Vacant Property – Possession of -  Suit property was a vacant piece of land from which structures stood demolished and removed before the institution of the suits-  The decision in John B. James and Ors. v. Bangalore Development Authority (2001) 1 KarLJ 364 did not permit anyone to claim that he is in settled possession of vacant land - No infirmity in the reasoning - Once the High Court recorded a finding that the property was vacant as on the date of the filing of the suit there was no question of the plaintiffs claiming settled possession of the said property. (2016)3 PLRSC 801

Victim Compensation Scheme - Cr.P.C. Section 357-A - All the States and Union Territories shall make all endeavour to formulate a uniform scheme for providing victim compensation in respect of rape/sexual exploitation with the physically handicapped women as required under the law taking into consideration the scheme framed by the State of Goa for rape victim compensation which provides that in case of injury causing, severe mental agony to women and child (eg. Rape cases etc.) Rs. 10,00,000/- (Ten Lakh) will be granted. (2016)3 PLRSC 289

Victim Compensation Scheme - Cr.P.C. Section 357-A - Whether the prosecutrix is entitled to victim compensation and, if so, to what extent? - Prosecutrix, blind and illiterate girl, was subjected to sexual intercourse on the promise of marriage - Victim being physically disadvantaged, she was already in a socially disadvantaged position which was exploited maliciously by the accused for his own ill intentions to commit fraud upon her and rape her in the garb of promised marriage which has put the victim in a doubly disadvantaged situation and after the waiting of many years it has worsened -   Victim, who has already suffered a lot since the day of the crime till now, needs a special rehabilitation scheme and being in a vulnerable position and who is not being taken care of by anyone and having no family to support her either emotionally or economically, we are not ordering the respondent-State to give her any lump sum amount as compensation for rehabilitation as she is not in a position to keep and manage the lump sum amount - State to pay Rs.8,000/- per month till her life time, treating the same to be an interest fetched on a fixed deposit of Rs.10,00,000/- .  (2016)3 PLRSC 289

Violation of order of Supreme Court – Rs. 5 crore imposed as penalty. Held, Since the College has also not complied with the orders passed by this Court in the above cited case and has permitted the students to continue their studies, to send a message to the College and other medical colleges, we are of the view that it would be appropriate if the JSS Medical College is directed to deposit an amount of Rs.5,00,00,000/-(Rupees five crores only) in the Registry of this Court within four weeks from today. (2016)3 PLRSC 55

W

Word  - Actus reus -  Usage -  Insofar as the appellants are concerned, admittedly they have not taken active part in the commission of crime, namely, there is no actus reus. (2016)3 PLRSC 670

Words - Actus reus (/ˈæktəs ˈreɪɪəs/), sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability. (2016)3 PLRSC 670

Words - Actus Reus [Latin, Guilty act.] - As an element of criminal responsibility, the wrongful act or omission that comprises the physical components of a crime. Criminal statutes generally require proof of both actus reus and mens rea on the part of a defendant in order to establish criminal liability. (West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc.). (2016)3 PLRSC 670

Words and Meanings -  “Cognizance” - Has a reference to the application of judicial mind by the Magistrate in connection with the commission of an offence and not merely to a Magistrate learning that some offence had been committed. (2016)3 PLRSC 883

Words and meanings - Confession – Meaning - The word 'confession' has no where been defined -  Courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision -  It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive -  Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate - Therefore, when a person is in police custody, the confession made by him even to a third person, that is other than a police officer, shall also become inadmissible - Indian Evidence Act,  1872,  Section 25. (2016)3 PLRSC 670

Words and phrases - “An advocate, in the discharge of his duty knows but one person in the world and that person is his client”. (2016)3 PLRSC 654

Words and Phrases - “Right to approach the court/pursuing the legal remedy cannot be made a farce or oppressive as that would not be conducive for the effective administration of justice.” (2016)3 PLRSC 915

Words and Phrases - “shall have due regard to”  - Is a very known legislative device used from the time of Julius v Bishop of Oxford (1880) LR 5 AC 214 (HL), and followed in many judgments both English as well as of our Courts as words vesting a discretion in an Adjudicating Officer . (2016)3 PLRSC 474

Words and Phrases - 'State should not punish with vengeance' - Emperor Ashoka. (2016)3 PLRSC 692

Workman – Daily wager and work charged employee - If engagement in a work-charged establishment rest on a criterion, no better than the absolute discretion of the authority engaging them or the fortuitous circumstances of a vacancy or need in a work-charged establishment, then, there is indeed no difference between a daily-wager on the one hand and work-charged employees on the other - No distinction can resultantly be made between these two categories of employees for in essence, the nature of their engagement remains the same except that in the case of work-charged employees, the wages/emoluments appear to be borne from out of the allocation for the project in which they are employed while in the other case there is no such specific allocation of funds - The classification of workcharged and other employees to say the least remains wholly unsatisfactory at least for the purposes of the case in hand leaving no option for us but to treat the case of the daily-wagers and work-charge employees on the same footing when it comes to granting regularization to them -  Daily wager and work charged employee. (2016)3 PLRSC 692

Workmen's Compensation Act Section 29 - Employer had agreed to pay a sum of Rs.1,50,000/- by way of compensation - But the said settlement had not been registered, as required under the provisions of Section 29 of the Workmen's Compensation Act -  As the settlement had not been registered, the said settlement could not have been looked into - Order of the Commissioner whereby the employer was directed to pay a sum of Rs.1,31,971 plus interest, upheld. (2016)3 PLRSC 287