MONTHLY DIGEST – DECEMBER 2019
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    • Dec 25, 2019
    • 47 min read

MONTHLY DIGEST – DECEMBER 2019

An individual cannot be deprived of his freedom permanently, especially when his guilt is not proved: Karnataka HC

A guy files a case against the petitioner/accused that he had kidnapped and committed sexual assault against his sister by on the false pretext of marrying her but there was nothing to indicate any specific allegations of kidnapping or sexual assault. The question of law is as to whether be the petitioner/accused guilty? Without any strong evidence to prove can the petitioner be accused guilty? Should he be granted a bail petition? The guilt of the petitioner/the accused is not proven, the Court decided & granted the bail to the petitioner/accused subjected to various terms & conditions.

Electricity Regulatory Commission have powers of reviewing the tariff and incentives – SC

The appeal was made in 3 batches. The question of appeal was common, consideration concerning the levy of wheeling charges by the appellant, consideration regarding the competence of the APTRANSCO to levy the grid support charges and consideration as to the continuance of incentives in respect of wheeling charges granted as per Government Order issued during the year 1997-1998, had to be continued, and whether Commission had the power to review them.

The judgment and order of the High Court were liable to be set aside concerning wheeling charges as well as Grid Support Charges. The order of APTEL was liable to be set-aside, and that passed by the APERC has to be restored.  “Transmission licence” means a licence granted under Section 15(1)(a), and “transmit” has also been defined in Section 2(p). The Commission has extensive and pervasive power to deal with the transmission. This court further observed that in the absence of regulation, the Commission has the power of fixation of the tariff. It is not dependent upon the framing of the regulation.

The appeals are allowed, and the orders passed by APERC are restored. No costs.”

Lok Sabha Passes “NATIONAL CAPITAL TERRITORY OF DELHI (RECOGNITION OF PROPERTY RIGHTS OF RESIDENTS IN UNAUTHORISED COLONIES) BILL, 2019”

Providing a legal framework to people living in unauthorized colonies in the state’s capital. Since there has been a phenomenal increase in the population of the National Capital Territory of Delhi in the last few decades owing to migration and other factors, this measure of recognizing the property rights of residents in unauthorized colonies are mandated.

Section 3 clause 2 fixes charges on payment of transactions of immovable properties based on the latest updates in the documents concerned. Section 3 and in particular clause 7 provide for the objectives of the Bill which are the affirmative version of the drawbacks which previously it had.

The property rights of resident in unauthorized colonies by securing the rights of ownership or transfer or mortgage in favour of the residents of such colonies who are possessing properties on the basis of Power of Attorney, Agreement to Sale, Will, possession letter or any other documents including documents evidencing payment of consideration and for the matters connected therewith or incidental thereto.

GOPALAKRISHNAN VS. STATE OF KERALA – Analysis

Malayalam film actress who worked in Tamil and Telugu industries as well was abducted and molested by eight people and the same was filmed by to blackmail the actress. Malayalam Actor, Dileep, one among the eight was arrested on being accused of the offense.  The video taken by the offenders was partly presented Actor Dileep, in his defense, demanded an unedited version of the document. The request of the appellant would be impinging upon the esteem, decency, chastity, dignity, and reputation of the victim and also against the public interest so such application by the appellant was rejected. The HC also upheld the order of the Trial Court under the provisions of privacy.

The issues considered by the SC in the appeal made – The provisions taken into consideration by the SC – the cases referred by the SC – Considerations made by the SC. The Court then directed the appellant to seek second expert opinion from an independent agency such as the Central Forensic Science Laboratory (CFSL).

The casual labourers shall be entitled to the wages according to the rates specified in the order – SC

The contract casual labourers who were being supplied by an earlier contractor for the Bikna Depot who directed that the contract casual labourers would be entitled to the payment of wages that is equivalent to that of Class IV Employees. Division Bench of the High Court was dismissed.

The issues raised in this case under SC are How much the amount is representing the profit received by the respondent? Whether the contractor is entitled to 471% ASOR for all items including item 24 for the supply of casual labourers?

The casual labourers shall be entitled to the rate of wages specified in the order dated 14.1.2010 & FCI shall be liable to pay the wages of the casual labourers & not on 471% ASOR basis.  The contractor shall be entitled to reimbursement of payment of wages made by him. The SC observed that the order dated 14.1.2010 does not appear to be left other open issues as determined. The Chairman to determine the profit earned by the contractor to be quashed & set aside. The Civil Appeal No. 35242/2019 stands dismissed. There shall be no order as to costs.

Non-compliance with Section 13(2) of the Food Adulteration Act would not be fatal when the sample is fit for analysis: SC

The appellant was the marketer of the packed food article ‘Orange Tammy Sugarless Jelly.’ This Jelly was being produced & manufactured separately by one namely Cachet Pharmaceuticals Pvt Ltd, which is not connected to the Appellant entity. The respondent had bought three jelly jars packed by the Company, from the retailer & the same samples were being deposited in the State Food Testing Laboratory as well as in the Local Health Authority, Bhopal for the purpose of testing them. At this point in the stage, the retailer did not have a receipt for the purchase & was unable to produce it from the Appellant/Marketer & said that the receipt would be duly produced to the Respondent at a later stage for sure.

The Report of the Public Analyst, State Laboratory had detected sugar in the Jelly that projects itself as sugarless jelly, thereby implying that the jelly is being misbranded. The respondents state that the Appellant did not respond to the query. The efforts of the Respondent to gather more information about the Appellant’s Company also failed.

The issue or question of law that arose in the case – The following provisions of the Prevention of the Food Adulteration Act, 1954 were examined by the SC.

The Court observed that the respondent had erred in not making the query to the retailer, the Respondents have not disputed the shell life of the jelly in all probability would have, expired at this stage. Hence, the appeal is allowed and the impugned judgment and the impleadment order are set aside.

Under Section 372 CrPC has held that the victim has no right to prefer an appeal against ‘inadequacy of sentence’: Delhi HC

The appeal arose out of FIR No.742/2007 registered with Police Station Prashant Vihar. The Trial Court had convicted the accused (respondent No. 2) sentenced him to imprisonment for life and imprisonment for seven years.

The HC of Delhi observed that the term “inadequacy of sentence” has a special connotation and a distinct statutory demarcation. Scheme of Section 377, which provides for the right of Appeal to the State/Prosecution, is entirely different from the right of Appeal conferred upon a victim under the Proviso to Section 372 of the Code. In the scheme of Proviso to Section 372 of the Code is compared, no provision in the entire Code empowering the State Prosecution to file an appeal against an order imposing inadequate Compensation.

The present appeal was not maintainable so the present appeal and pending application are dismissed.

Court cannot adopt an interpretation of the EIA Notification which would permit project proponents to increase the construction area of a project without any oversight from the Expert Appraisal Committee: SC

The appellant, the project proponent, received a Commencement Certificate to carry out the residential redevelopment called “Oriana Residential Project”. The total construction area was 8,720.32 square meters but the ambit of the project was expanded, and the constructed area was increased to 32,395.17 square meters. The appellant applied for an EC under the EIA Notification. The grant of the EC was conditional. The appellant then informed the Environment Department of the Government of Maharashtra that the construction area was being further increased by 8,085.71 square and thereby sought an amendment to the EC. The State Level Environment Impact Assessment Authority for Maharashtra granted the same on the ground that there was only a “marginal increase in built-up and construction area”.

The central issue was whether the amended EC granted by the SEIAA without following the procedure stipulated in paragraph 7(ii) of the EIA Notification is valid?  The Bombay High Court held that the challenge against the grant of the amended EC was barred by limitation.  The SC has made some observations based on the contentions made by both the parties.

The NGT has given some directions to be followed by the appellant, so the SC upheld the view of the NGT and to direct the committee to continue its evaluation of the appellant’s project and also imposed compensatory exaction on the appellant. The appeal is dismissed.

The Technical Assessment Reports of an Army not be considered for Permanent Secondment in the Directorate General Quality Assurance, after the office memorandum dated 12.05.2011 came into force: SC

The respondent after completion of two years of service in the Collectorate of Quality Assurance, he fell in the zone of consideration of Permanent Secondment but the case was not recommended for the same. In the TAR for the year 2014 – ­15, he was declared ‘NOT YET FIT’ for Permanent Secondment in DGQA. Thereafter, he was reverted to the Indian Army.  The Delhi High Court allowed the writ petition and held that the TARs could not be taken into consideration.

After the deep contentions made by both the parties the SC held that the appellants wanted to make TAR a mandatory requirement for fulfilling the eligibility criteria they could have done that by making similar amendment or issuing another office memorandum in this regard, but that did not happen,  it had not been indicated in the TAR whether the officer was FIT/NOT FIT/NOT YET FIT, for Permanent Secondment in DGQA, it was true that this letter emphasized the importance of the TAR but in view of the clear language of office memorandum, the same cannot be taken into consideration.

The SC has no doubt in our mind that the TAR is the criteria that could not have been taken into consideration. Therefore, dismiss the appeal and uphold the judgment of the Delhi High Court.

Lok Sabha Passes “THE TAXATION LAWS (AMENDMENT) BILL, 2019”

The bill was introduced to replace the ordinance promulgated by the president in September 2019 to reduce the corporate tax rates. The ordinance proposed lower tax rate options for domestic companies to promote growth and investment and attract fresh investment in the domestic manufacturing sector. This bill will replace the ordinance and amend both the Income Tax Act, 1961 as well as Finance (No 2) Act 2019.

Key features of the Bill – Comparison of corporate tax rates across major countries (2018) -(Source– OECD Corporate Tax Statistics 2018)

India has levied the highest tax. Finance minister Nirmala Sitharaman said that the bill is the response to the emerging global challenges.

Against fair trial, if in every case the prosecution presents documents in sealed cover: SC

It was alleged in the FIR that M/s INX Media in order to avoid punitive action entered into a criminal conspiracy with Mr. Karti Chidambaram. Concealing the happenings they sought approval for another downstream investment by the M/s INX Media Private Limited, The Foreign Investment Promotion Board (FIPB) did not approve the same. Apprehending his arrest by the Respondent, the appellant filed an application before the High Court of Delhi seeking grant of anticipatory bail but it was dismissed. The appellant then approached this Court by filing Criminal Appeal.

The refusal of the bail is the exception so as to ensure that the accused has the opportunity of securing fair Trial. The appellant is ordered to be released on bail if he is not required in any other case, the appellant shall make himself available for interrogation in the course of further investigation as and when required by the respondent The appellant shall not tamper with the evidence or attempt to intimidate or influence the witnesses; The appellant shall not give any press interviews nor make any public comment in connection with this case qua him or other co-accused.

After making some of the observations the SC pronounced that the appeal was allowed and the HC order was set aside.

AICTE is not entitled to impose any regulatory measure in connection with the degrees and diplomas of Architecture Course – SC.

The objective of the Council of Architecture is to provide for the registration of Architects and for matters connected therewith and the objective of the AICTE is to provide for a Council with a view to proper planning and coordinated development of the technical education system throughout the country.

In the case of Shri Prince Shivaji Maratha Boarding House’s College of Architecture, the CoA on carrying out an inspection of the college in the year 2004 decided to reduce the intake capacity of students from 40 to 30.  It was a joint decision by CoA and AICTE.  The CoA again restored the intake capacity to 40 students but the Director of Technical Education followed the intake capacity as 30 by the standards fixed by the AICTE.  Here arose the problem of which order to be followed. Both the regulatory authorities under the respective statutes have the power to frame regulations for giving effect to the provisions of the respective Acts.  The Power to make rules in respect of certain areas covered by the statutes has been vested in the Central Government both under the 1972 Act and the 1987 Act.  All the powers are mentioned in the statute which almost resembles the same.

The CoA is not the ultimate decision-making authority but it is a central government in relation to the process of recognition of degree.  Such a decision is required to be taken after consultation with the CoA which becomes critical to it.  Where else the approval power of AICTE is direct. Therefore the court made its judgment that the regulating power of Degree/Diploma in architecture education lays in the hands of the Council of Architecture Under The 1972 Act.  Other orders passed in these appeals shall be dissolved.

Commutation of the death penalty cannot be allowed in “rarest of rare case”: SC

A 10-year-old girl and her brother a 7-year-old boy was kidnapped by the accuse Mohanakrishnan and Manoharan.  The accused were arrested for committing rape on the girl child and the murder of both the children, but Mohanakrishnan was later shot dead in an encounter and Manoharan was convicted for the death penalty.

The question of law is as to whether the review petition can be filed in death penalty cases?

The court held that they do not see any good ground and reasons to review my observations and findings in the minority judgment. The accused young age, backward socioeconomic status cannot be taken into consideration for the commutation of the death penalty.

Thus, after listening to the petitioner/accused’s counsel’s contention & examining the precedents quoted by the petitioner/accused, the honourable Supreme Court observed that the review petition for commuting the death penalty was dismissed.

Under Section 228 Cr.P.C the judge is not required to record detailed reasons, only prima facie case is to be seen: SC

The appellant-complainant and her family members came to know from the neighbours that her husband was lying dead in the tank/hose in the field of the first respondent-Ghanshyam on 25.12.2015. The appellant has alleged that Ganesh s/o Mohanlal Kushwah prevented her from going near her husband and locked her in a room. The dead body of her husband was taken to the government hospital and post-mortem was conducted without informing her but no case was registered against any person. The State of Madhya Pradesh filed a revision before the Additional Sessions Judge Challenging the direction of ACJM to register an FIR but it was dismissed.  Meanwhile, charges were framed against the respondents by the learned Second Additional Sessions Judge but the High Court quashed the charges against respondent Nos.1 and 2 and then discharged them. The appellant then preferred the present appeal.

The court held that for framing the charges under section 228 Cr.P.C, the judge is not required to record detailed reasons. The court is not required to elaborate inquiry, only prima face case is to be seen.

The High Court, in the SC view, erred in quashing the charges framed against the accused. The impugned order 25.02.2019 is set aside and this appeal is allowed. We make it clear that we have not expressed any opinion on the merits of the matter.

Search illegally itself amounts to infringement of privacy and such act is in breach of the fundamental rights given under Article 21: Bombay HC

The present proceeding was filed for declaration that the act of the respondents, police officers, of taking search of the house of the petitioner on the night between 5-5-2018 and 6-5-2018 was illegal and that was interference in the privacy of the petitioner and his family. The direction was also sought to prosecute the police officers involved in the house search for offence of trespass and other offences.

The court held that for the prosecution there is a necessity of sanction under section 197 of the CrPc, in this case, no further action by the police officer was warranted and giving of the compensation to the petitioner would be sufficient.

If the amount is not deposited within 45 days the amount shall carry interest at the rate of 8% per annum. After deposit of the amount, the amount is to be given to the petitioner. It will be open to the State to make an inquiry and fasten liability on the concerned for recovery of the amount from the concerned officers. It is open to the petitioner to take appropriate steps permitted by law for prosecution. The rule is made absolute in those terms.”

Classification of properties of religious institutions for rent legislations will pass a challenge under Article 14: SC

This Civil Appeal impugns the judgment dated 6th July 2006 passed by the High Court of Punjab and Haryana which dismissed five writ petitions challenging the validity of the Punjab Religious Premises and Land (Eviction and Rent Recovery) Act, 1997. Whether the properties of the religious institutions for the purpose of rent control legislations can be treated as a separate category?

Court had held that separate classification of properties of religious institutions for rent legislations will pass a challenge under Article 14 of the Constitution. The classification of properties of “religious institutions” as a separate and distinctive class of properties would not fall foul or be violative of Article 14 of the Constitution.

The Court, therefore, rejected the argument that religious institutions as landlords or tenants of religious institutions cannot be treated and regarded as a separate category in respect of whom protection as available to other tenants under the rent law would not be available. Such classification cannot be ground or the basis to interfere with the validity of an act or provision. However, it was observed that the Courts can interfere when the policy is irrational.

An order passed by the Collector is appealable before the Commissioner and if still aggrieved, a tenant can invoke the writ jurisdiction of the High Court, as mentioned above. Therefore, the power of judicial review is always available and can be exercised by the High Court when required and necessary.  Accordingly, we do not find any merit in the present appeal and the same is dismissed. However, in the facts of this case, there would be no order as to costs.”

Perfunctory analysis cannot be sustained: SC on bail

On 2 December 2018, the deceased (Akhilesh) and his friend Aashish left the matrimonial home to run an errand. They stopped their bike on the road which caused a quarrel with two accused persons – Vijay and Anil, who then hurled abuses at the deceased. It was alleged that the accused used rods to beat the deceased with an intention to kill him. It was alleged that after beating the deceased, the accused fled from the scene of the incident.  The bail application filed by the first respondent before the Additional Sessions Judge was rejected on 10 April 2019. Thereafter, the first respondent filed a bail application before the High Court of Rajasthan, which was allowed. Assailing the order of the High Court enlarging the first respondent on bail, the appellant filed the present appeal.

The High Court has erred in not considering material relevant to the determination of whether the accused were to be enlarged on bail. The order of the High Court enlarging the accused on bail was erroneous and liable to be set aside. The SC held that since the accused has been allowed in bail during the pendency of the proceedings, the bail order shall stand canceled and the five accused shall be taken into custody. It further classified that the present judge has not expressed anything in the merits of the case at the trial.

At the time of Framing of charge, court cannot rove enquiry into the pros and cons of the matter: SC

The police recorded the statements under section 161 and 164 Cr.P.C. They stated that the deceased S.N. Gupta had invested a large sum of money in almost all the committees run by accused and the monies invested in this firm were not returned by Shiv Charan Bansal and Sachin Bansal. Thereby, a criminal conspiracy was hatched by Sachin Bansal and Narendra Mann to eliminate S.N. Gupta, so that the monies invested by S.N. Gupta in the committees run by his father Shiv Charan Bansal and himself, could be retained by them, and he would then be able to pay Narendra Mann the money owed to him by Naveen Gupta. Shiv Charan Bansal offered to pay for the expenses involved in carrying out the murder of S.N. Gupta. The Police recovered the three used cartridges from the spot of occurrence and an unlicensed pistol along with two live cartridges was recovered from the office of accused. All the accused were arrested and disclosure statements were made by them. During an investigation of the case, the complainant identified Joginder Singh as the assailant. The Forensic Report, Handwriting expert Report, and the Ballistic Report were placed on record along with a Supplementary Charge on 26.11.2006.

It further held that the prosecution failed to make out a prima facie case against accused – Rajbir Singh, Lalit Mann and Shiv Charan Bansal who were discharged. The High Court vide the Common Judgment dated 29.05.2009 affirmed the Judgment of the Sessions Court ordering discharge of Shiv Charan Bansal, Shailendra Singh, Lalit Mann, and Rajbir Singh. The Hon’ble Supreme Court made observations regarding the scope of sections 227, 228 of Cr.P.C, and the criminal conspiracy involved. It took into consideration each accused individually. The court has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused under section 227 of Cr.P.C. The test to check the prima facie case would depend upon the facts of each case.

“The Criminal Appeal filed by the State of NCT of Delhi being Crl. Appeal No. 2248 of 2010, and the private Complainant – Kanta Devi being Cr. Appeal No. 224 of 2010 are allowed in Part. We direct the Additional Sessions Judge, Rohini Courts to proceed with the trial in accordance with the law in Sessions Case No. 6/2007 arising out of FIR No. 200/2006 dated 21.03 and is further directed to report the progress of the case to this Court after three months.”

Charter Party Agreement tantamount to a deemed sale as there was a transfer of right to use the vessel as provided in Article 366 (29A)(d) read with section 5C or section 2(j) of the Karnataka Sales Tax Act: SC

The Hon’ble Supreme Court considered the following issues in the present case;  Whether the State of Karnataka has jurisdiction to levy sales­tax under section 5C of the KST Act in respect of the Charter Party Agreement dated 8.1.1998? Whether the agreement dated 8.1.1998 constitutes “transfer of the right to use”? Whether the State of Karnataka has the competence to levy sales tax on the agreement, which is effective within the territorial waters? 

The court stated that there is no dispute as to the vessel and the charterer has a legal right to use the goods, and the permission/license has been made available to the charterer to the exclusion of the contractor. Thus, there is a complete transfer of the right to use. The agreement has been admittedly signed in Mangalore, and the vessel is used in the territorial waters, which is as per the submission of the company, fully in the territory of the Union of India. It makes no difference as the situs of the deemed sale is in Mangalore. Thus, the liability to pay tax under the Act cannot be countenanced.

The transaction is liable to be taxed by the concerned authorities in the state of Karnataka and therefore, the court finds no merit in the appeal and is dismissed.

Additional munificence, in addition to the job provided for the sustenance of the deceased’s family, was unwarranted: SC

The present appeal arises out of the judgment of the High Court of Orissa which dismissed the appellants’ challenge to the order of the Odisha Administrative Tribunal (hereinafter referred to as “the Tribunal”) under which the authorities were directed to consider sanction of invalid pension in favour of late Sagar Naik (husband of the respondent) and thereafter settle family pension in favour of the applicant, under the provisions of the Orissa Civil Services (Pension) Rules- 1992.

The respondent filed the OA before the Tribunal praying for fixation of pay of late Sagar Naik and for disbursal of his accrued financial benefits with effect on being mentally incapacitated. The applicant also prayed for sanction of family pension. The Government Advocate on behalf of the State contended before the Tribunal that the applicant’s husband had not rendered the qualifying period of service so as to make him eligible for the pension. The Tribunal concluded that the applicant’s husband was entitled to an invalid pension under Rule 39 of the Pension Rules. It was challenged by the appellants.

The tribunal as well a the HC granted her the unclaimed relief,  in addition, the job provided for the deceased family in the view of the SC was unwarranted and the impugned order cannot be sustained and therefore the order was set aside and the appeal was allowed.

Subsequent attempt to interpret the sale contract in a manner that reduces the scope of its liability to provident fund dues cannot be given effect: SC

Karkhana Ltd. had obtained credit facilities from the Appellant-Bank and mortgaged its properties in return. Later, it took physical possession of the mortgaged properties. Karkhana issued a notice to its employees directing them to proceed on leave without salary due to its poor financial conditions. The Industrial Court held that it amounted to an unfair labour practice and directed the Karkhana to pay the unpaid salaries on a top priority basis from any funds that may become available with it.

The order of the Industrial Court dated 08.08.2011 was modified to clarify that the certificate was to be issued to the Collector first, who would then proceed to recover the sum as per the recovery certificate. After the auction sale, the Appellant-Bank held the proceeds in trust as per Section 13(7) of the SARFAESI Act and did not have a first charge over them. Further, it was found that upon the liquidation of the Karkhana on 19.01.2013, Section 529A of the Companies Act, 1956 came into operation, thereby according to employees’ dues priority over all other dues in respect of the sale proceeds. In light of this, it was held that the Collector could recover the said amount of Rs.13,89,84,334 from the sale proceeds held in trust by the Appellant-Bank. Thereby, the present appeal lies before the Hon’ble Supreme Court.

The SC considering its observations it pronounced “The Appellant-Bank does not enjoy any paramount charge over the sale proceeds either. the sale letter dated 08.03.2010 and the sale certificate dated 14.09.2010 constitute a contract which displaces the order of distribution. The cumulative effect of these documents is that the Appellant-Bank must pay the employees’ dues out of the sale proceeds from the auctioned property. To this extent, the recovery certificate issued by the Industrial Court on 08.08.2011 may be executed. All other dues in respect of the secured property, including any unpaid statutory dues in relation to employees (provident fund, gratuity, bonus, etc.) shall be paid by Respondent No.5 within a period of six months from the date of this order. The instant appeal is disposed of accordingly.”

“Sufficiency of evidence” was not within the realm of judicial review: SC

The Respondent was appointed as a Child Development Officer and Sh. Jitendra Rajak filed a complaint against the Respondent to the Vigilance Bureau of Investigation alleging demand of illegal gratification. The same conducted a raid and the Respondent was caught red-handed. Disciplinary proceedings were commenced and she was placed under suspension. An inquiry was held in which three charges were framed. The learned Single Judge concluded that the charge of demand and acceptance of the illegal gratification by the Respondent was not proved. The Division Bench of the High Court affirmed the judgment of the learned Single Judge in the Writ Petition and dismissed the appeal filed by the Appellant.

The criminal trial against the Respondent is still pending consideration by a competent criminal court. The Inquiry Officer examined the evidence and concluded that the charge of demand and acceptance of illegal gratification by the Respondent was proved.

The court observed that it was settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of no evidence, sufficiency of the evidence was not within the realm of judicial review, strict rules of evidence are to be followed by the criminal court where the guilt of the accused had to be proved beyond reasonable doubt. In view of the above, the judgment of the High Court is set aside and the order of dismissal of the Respondent is upheld. The Appeal is accordingly allowed.

Mere failure to perform duties may be administrative lapses and it will not constitute an offense under 420 IPC: SC

FIR was registered pursuant to complain against the Respondent No.1. After the cognizance was taken by the concerned court, an application was moved by the Respondent No.1 seeking discharge in terms of Sections 227 and 239 of the Code of Criminal Procedure, 1973 but it was rejected by the Additional City Civil and Sessions Judge and Principal Special Judge for CBI cases. Aggrieved by it, he preferred the Criminal Revision Petition in the High Court, which was allowed by the judgment and order presently under appeal.

The court observed that as regards offence punishable under Section 420/34 IPC, it was observed that the essential ingredient being mens rea, mere failure on part of the concerned employees to perform their duties or to observe the rules and procedure may be administrative lapses but couldn’t be said to be enough to attract the Penal provision under section 420 of IPC.

The SC pronounced that “The High Court clearly erred in allowing the Criminal Revision Petition and accepting the challenge raised by the Respondent No.1 on the issue of sanction. We, thus, allow this appeal, set aside the view taken by the High Court, restore the order passed by the Trial Court and dismiss the application seeking discharge preferred by the Respondent No.1”

State of Uttarakhand cannot be blamed for Tehri Hydro Development Corporation delay and will not bear the costs: SC

The State of Uttarakhand filed the present Suit under Article 131 of the Constitution for various reliefs, including a declaration that the allocation of 25% shareholding in the Tehri Hydro Development Corporation (THDC) in favour of the State of U.P. consequent to the enactment and coming into force of the U.P. Reorganisation Act, 2000, was void with effect from 09.11.2000 and a further declaration that the plaintiff/State of Uttarakhand, was the rightful owner of the said shareholding and consequently, decree of mandatory and permanent injunction to allocate the said shareholding of THDC in its favour and also allocate the dividends from 09.11.2000 till disposal of the suit, to it. The Hon’ble Supreme Court entertained the suit by proceeding dated 06.12.2012 and by order dated 12.12.2012 dismissed the application for interim relief.

The court observed that after the filing of the application- on 09.04.2014, the State of Uttarakhand cannot be accused of negligence and the plaintiff sought an adjournment at least on two occasions, i.e. 27.09.2016 and 06.05.2019. It cannot be said that the entire blame for the delay in dealing with the application and the costs thereof were to be borne by the State of Uttarakhand.

SC upholds Section 184 of the Finance Act 2017, but the Rules framed under Section 184 struck down. Passage of Finance Act, 2017 as money bill referred to larger Bench.

The Hon’ble Supreme Court’ has upheld the Constitutional validity of Section 184 of the Finance Act, 2017 and struck down the rules framed thereunder. The bench had also referred the issue regarding the passing of the Finance Act, 2017 as a money bill is referred to seven-judge Constitutional bench. The SC also directed the Central government to re-formulate the Rules strictly in conformity and in accordance with the principles delineated by the SC in R K Jain v. Union of India, L Chandra Kumar v.Union of India,  Madras Bar Association v. Union of India and Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., and to carry out an appropriate exercise for amalgamation of existing Tribunals adopting the test of homogeneity of the subject matters.

If the answer to the above is in the affirmative then whether Section 184 of the Finance Act, 2017 is unconstitutional on account of Excessive Delegation? If Section 184 is valid, Whether Tribunal, Appellate Tribunal, and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 are in consonance with the Principal Act and various decisions of this Court on the functioning of Tribunals?

SC held that Section 184 of the Finance Act, 2017 does not suffer from an excessive delegation of legislative functions as there are adequate principles to guide the framing of delegated legislation. Justice Chandrachud in his concurring opinion recommended the formation of a “National Tribunals Commission” to oversee the selection process of members, criteria for appointment, salaries, and allowances, of tribunals and held that Section 184 suffers from the vice of excessive delegation and is accordingly struck down. The Hon’ble SC after analyzing the Composition of the selection committee, Qualifications of members and presiding officers, the term of office and maximum age and constitutionality of the procedure for removal held that the rules are inconsistent with each other and Rule 07 gives unwarranted discretion to the central government. Following the Madras Bar Association v. Union of India [(2014) 10 SCC 1], the SC held that “the Central Government cannot be allowed to have administrative control over the Judiciary without subverting the doctrine of separation of powers.”

The SC disposed of the petition.

When the exemption is granted under the particular provision; it would not cover any other kind of duty of excise imposed under separate Act: SC

The Government of India in order to promote industrial development in the North-Eastern region announced vide Office Memorandum dated 24.12.1997, specific fiscal incentives including total exemption from tax to the new industrial units and substantial expansion of existing unit in the North Eastern Region for a period of 10 years from the date of commencement of production. Government of Sikkim vide Notification dated 17.2.2003, notified new industrial policy whereby all fiscal incentives available to the industries in the North Eastern Region would be available to the units set up in the State of Sikkim. The Central Government issued a Notification dated 9.9.2003, granting exemption from payment of duty of excise for goods specified in the notification and cleared from a unit located in the Industrial Growth Centre or other specified areas within the State of Sikkim. The manufacturer has to first utilize the Cenvat Credit for discharging duty liability on final products, and the remaining amount of duties had to be paid through Personal Ledger Account (PLA) or Current Account, i.e., in cash. Thus, the exemption scheme was to discharge the liability on the final product and then claim or avail the refund or recredit of the duties paid in cash.

The Unicorn Industries established a unit in 2006 for manufacturing “Indian Mouth Freshener” an excisable commodity covered under Chapter 21 of the First Schedule of Central Excise Tariff Act, 1985. It was registered under the Central Excise Act. In June 2006, the appellant had started manufacturing its product. The Commissioner, Central Excise issued show-cause notice, it was submitted that grounds phrased in the response were unsustainable. The appellant was asked to show cause why amount should not be recovered under Section 11A of the Central Excise Act along with the interest and penalty.

It was held that a smaller bench could not disagree with the view taken by a larger bench. It is clear that before the Division Bench deciding SRD Nutrients Private Limited and Bajaj Auto Limited (supra), the previous binding decisions of three-Judge Bench in Modi Rubber (supra) and Rita Textiles Private Limited (supra) were not placed for consideration. The court pronounced that the decisions are binding on the Coordinate Bench and declared that it did not find any ground to take a different view.

NCLT and NCLAT would have jurisdiction to enquire into questions of fraud: SC

For finding an answer to the question in this case, the scope of the jurisdiction and the nature of the powers exercised by –the High Court under Article 226 of the Constitution and the NCLT and NCLAT under the provisions of IBC, 2016 were to be seen. When considering the jurisdiction of NCLT, the court answered that that NCLT did not have jurisdiction to entertain an application against the Government of Karnataka for a direction to execute Supplemental Lease Deeds for the extension of the mining lease. Since NCLT chose to exercise a jurisdiction not vested in it in law, the High Court of Karnataka was justified in entertaining the writ petition, on the basis that NCLT was Coram non judice.

Karnataka, the CIRP had been initiated by one and the same person taking different avatars, not for the genuine purpose of resolution of insolvency or liquidation, but for the collateral purpose of cornering the mine and the mining lease, the same would fall squarely within the mischief addressed by Section 65(1). Therefore, it was clear that NCLT had jurisdiction to enquire into allegations of fraud. As a corollary, NCLAT would also have jurisdiction. Hence, fraudulent initiation of CIRP cannot be a ground to bypass the alternative remedy of appeal provided in Section 61.

The HC was justified in entertaining the writ petition and so the SC see no reason in not entertaining them, therefore, the appeals were dismissed.

Candidate was not possessing respective educational qualification cannot be ground for termination: SC

The eligibility condition was that a candidate must have obtained a certificate in respective trade from NCVT. It was not necessary that a qualification prescribed in the Rules had to be possessed in one certificate. Once the educational qualification had been treated to be equivalent by the State Government in the Circulars issued earlier, the stand of the State that the appellant was not qualified had no legs to stand. The State itself had treated the qualification of the basic course in Mechanical Trade Fitter. Thus, it was found that the stand of the State that the appellant was not possessing educational qualification cannot be sustained. The candidature of the appellant was not validly rejected.

The SC held that in the view of the above the appeals were allowed.

Employees cannot be discriminated in the grant of the benefit extended: SC

The Central Government transferred 15 employees who were working in the Vacuvator Division of the Kandla Port Trust to the Food Corporation of India with effect from 01.01.1973. Aggrieved by the benefit not being extended to the remaining 306 employees of the Kandla Port Trust who were transferred to the Food Corporation of India.  The question of law is that the benefit given to the 15(regular employees) employees could also be given to the remaining 306 employees(work charge employees).

The same office order also says that even if we assume that the work charge employees can be appointed the regular employees, they are not capable of claiming the same level of payment. The main aim of the appeal is only to grant the benefit which was given to the 15 employees. The SC dismissed the appeal as the appellant was not to take up the cause of work charge employees and claim on their benefits similar to those granted to the regular employees.

Service free of charge under a contract of personal service is not included in the definition of service: SC

Whether the relationship of consumer and service provider existing between the private respondents and appellants?

The SC partly allow the appeals and set aside the orders of the National Consumer Disputes Redressal Commission and the State Consumer Disputes Redressal Commission in so far as it held that there is a relationship of consumer and service provider between the claimants and the ONGC. We also set aside the costs imposed by the National Consumer Disputes Redressal Commission. However, in view of the statement made by Shri Venugopal, recorded in the opening portion of this judgment, we direct the ONGC to pay the amounts payable (other than the costs) under the orders impugned to the claimants within 8 weeks from today. Pending application(s), if any, stand(s) disposed of.”

Computation of the depletion in the net income which accrues to the deceased need to be adduced: SC on MV act

The question of law raised was as to how much compensation was to be given and how it is to be computed.

The Court observed that there was no evidence that was adduced by the appellants at any stage of the proceedings to assist in the computation of depletion in the net income which accrues to the deceased. Therefore the total compensation to be paid to the appellants is a sum of Rs.42, 29, 534 plus interest at 9 % per annum from the date of filing of application till the date of payment of compensation to the appellants. The appeals are partly allowed to the extent indicated above. There shall be no order as to costs. Pending applications, if any, shall stand disposed of. “The appellants shall be entitled to compensation based upon loss of dependency, funeral expenses, losses such as loss of estate, loss of consortium as well as the loss of love and affection.”

LEGISLATIVE COMPETENCE OF STATE LEGISLATURE FOR STATUTORY APPEALS TO THE SUPREME COURT

Rajendra Diwan V. Pradeep Kumar Ranibala & Anr.- Samsher Singh V. State of Punjab –  Puthiyadath Jayamathy Avva and Ors. vs. K.J. Naga Kumar and Ors. – K.K. Poonacha vs. State of Karnataka and Ors – H.S. Yadav vs. Shakuntala Devi Parakh – United Provinces vs. Atika Begum – Natarajan vs. B. K. Subba Rao – Dhakeshwari Cotton Mills Ltd. vs. Commissioner of Income Tax, West Bengal  – L Chandra Kumar vs. Union of India and others –

The State conclusively decided that the state legislature lacked legislative competence to enact the Rent Control Act. Therefore the court declared the Section 13 (2) ultra vires the Constitution of India and it is null and void and has no effect.

THE CITIZENSHIP (AMENDMENT) BILL, 2019

An overview – Features of the bill -Concerns raised against the bill.

The Union Minister assured that the persecuted migrants will be shared by the whole country and not only Assam. He also gave the assurance that there will be full support to the state governments after the implementation of the bill. It may be argued that giving the central government the power to prescribe the list of laws whose violation result in cancellation of OCI registration, may amount to an excessive delegation of powers by the legislature.  The Supreme Court has held that while delegating powers to executive authority, the legislature must prescribe a policy, standard, or rule for their guidance, which will set limits on the authority’s powers and not give them arbitrary discretion to decide how to frame the rules. However, the bill was passed in the Lok Sabha amidst the opposition’s outcry.

Judgment OF THE SUMMARY COURT MARTIAL OUGHT NOT TO BEEN INTERFERED BY THE TRIBUNAL: SC

The respondent was then therein tried by the Summary Court Martial for the civil offence of housebreaking & was found to be guilty of the charge and gave a rigorous imprisonment sentence of seven months plus dismissal of service and reduction in the ranks.

The question of law rose as to whether should the respondent be punished? Whose judgment is to be taken, the Summary Court Martial’s or the Tribunals?

The tribunal felt that the statement of Smt. Sudesh to be inconsistent and felt the evidence which Smt. Sudesh holds is not strong enough to prove that the respondent is guilty. The Tribunal too highlighted the fact that Smt. Sudesh was well acquainted with the respondent. They felt there is a ring of truth in the statement she gave to Pritam Singh and there is no reason for her to falsely implicate the respondent.

The judgments of acquittal may be reversed or otherwise disturbed for only very substantial and compelling reasons exist like when the trial court has ignored or misread the evidence/documents like dying declarations, report of the ballistic expert, etc..” Due to the above observations, the SC held that the order of the Tribunal is to be set aside and the order of the Summary Court Martial to be restored.

Unintentional flaw of a judicial officer shall not make him culpable: SC

A judicial officer of the rank of Additional District and Sessions Judge while posted as the Chief Judicial Magistrate granted acquittal to the accused. A complaint was lodged against the appellant with regard to the acquittal. A vigilance enquiry was adverse to the appellant. A punishment was directed towards the appellant and he accepted it without any challenge. Later a Full Judge Bench ordered compulsory retirement of the appellant. He challenged the order before the HC which was unsuccessful and he preferred the present appeal before this court.

The issue that is to be decided by the SC is whether the compulsory retirement of the appellant valid?

The Court observed that the performance chart of the appellant rates him to be fair and good. There can hardly be any direct evidence on integrity, the SC held that It must be understood that an unintentional flaw of a judicial officer shall not make him culpable. A bona fide error needs correction and counseling. “For a trained legal mind, a judicial order speaks for itself.” “Thus the order of compulsory retirement of the appellant calls for no interference. The appeal is dismissed.”

IMPACT OF DELAY IN FILING SLP ON THE AMOUNT OF COMPENSATION ALLOWED: SC

The Special Land Acquisition Officer acquired land situated in Yellapur village u/s 17(4) & 4(1) of the Land Acquisition Act. The acquisition restrained the affected landowners from alienating or creating a charge over the said land. The Land Acquisition Officer passed an award of Rs.7500/- per gunta with respect to the acquired land. Aggrieved by the order, the appellants sought reference u/s 18 of the act seeking enhancement of the compensation. The Reference Court enhanced the compensation to Rs.25000/- per gunta. The Land Acquisition officer appealed to the HC of Karnataka. This court did not grant compensation of Rs.26000/- per gunta and it applied the principle of annual depreciation and modified the award of Reference Court and reduced the compensation to Rs.510000/- per acre. The affected landowners filed SLP to this court.

The issue before the court is whether the appellants get their requested compensation despite the delay in filing the appeal and whether they are entitled to seek interest as well?

The interest cannot be allowed for the period for which they did not approach the court. Thus the HC order is set aside and the award allowed by the reference court is restored. But the appellant cannot be allowed interest to the enhanced compensation and statutory amount for the period of delay in filing the appeal.

DISHA BILL – Andhra Pradesh Legislative Assembly passed the bill to ensure speedy trial in offences of rape and gang rape

Introduction- Background of the Bill- Highlights of the Bill

Highlights of the bill are Death Penalty in Rape Cases, Total judgment in 21 working days, Establishment of Exclusive Special Courts,  Introduction of Section 354 E and 354 F in Indian Penal Code

MERELY BECAUSE AN ORDER HAS BEEN PASSED BY THE OFFICER, IT DOES NOT WARRANT THE PERSONAL PRESENCE OF THE OFFICER IN THE COURT – SC

Appeal arising out of SLP has been filed by the appellants against the judgment passed by the High Court of Judicature at Allahabad in Writ-petition in and by which the High Court has quashed the order passed by the appellants denying retrial benefits to the respondent on account of her having joined the service in Chhattisgarh Institute of Medical Sciences and the High Court directed the appellants to pass fresh order in accordance with law in the light of observations made by the High Court. Appeal arising out of SLP has been filed against the interim order passed in Writ-petition whereby the High Court directed the Principal Secretary, Department of Medical Education and Training to appear in-person and explain how the claim of the respondent has been rejected by order despite the judgment of the High Court dated. The issue is as to whether the respondent is entitled to retirement benefits from Motilal Nehru Medical College or not.

The SC observed that though the HC had ordered the State to examine the case of the respondent afresh, putting restrictions to it by stating it has to be observed in the light of the observations made by the HC is not right. The order of the HC is said to be set aside by the SC.

OFFENCES U/S. 181 & 182 OF IPC BY VIRTUE OF S. 195(1)(a)(i) OF CR.PC CAN BE TAKEN COGNIZANCE ONLY UPON A PROPER WRITTEN COMPLAINT – SC

The facts of the case are that on or around 3.6.2018, FIR 256/2018 was filed by the respondent’s mother submitting that the petitioner and her family had been blackmailing them to pay them a sum of Rs. 15 Lakhs or else they would file false allegations of rape on them. Alleged that Succumbing to the pressure, the respondent paid five lakhs and promised to pay the rest within three months. The FIR, Thus alleged the commission of offences punishable u/s. 384, 389 read with S. 34 of IPC

Protection u/s. 438 & 482 of Cr.PC was granted to the petitioner and her family, under which they also sought for the quashing of the FIR 256/2018

The issue was to as to if the facts alleged by petitioner are true or not

The Court observed that there was nothing substantial to show that the respondent had taken undue advantage of the petitioner or that the investigation was not directed well. The Court held any audio or video clippings found later on part of the petitioner should be submitted to the Spl. Investigation team within two days. With the aforesaid observations, the writ petition stands disposed of.

The court is not powerless in calling the accused to face trial: SC Reiterate

The appellant’s daughter Juhi Arshi died on 10th June 2017 in her matrimonial house, where she and her husband lived separately. Her parents (the appellant) had a doubt that she might have murdered by her husband. The husband of the deceased Juhi was asked to face trial as he appeared to be complicit in the crime leading up to the murder of his wife. The Additional District and Sessions Judge allowed the application and summoned the second respondent under Section 319 of the CrPC. The appeal was filed by the second respondent under the High Court. The appeal was also allowed by the Single Judge of High Court which was filed under Section 482 of the CrPC.

Whether the court has the power to alter the charge or through any evidence, it can lead to implicating the second respondent for an offence under Section 306 when the trial against Manoj Shrivastav for an offence under Section 306 of IPC was pending?

The SC observed, “Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial.” The appeal made the appellant was allowed by the Supreme court and the order passed by the High Court was set aside. The order passed by the Additional Sessions Judge was upheld.

Once Cruelty and Torture are proved, presumption rests on the accused under Section 113-B: SC

The offence of this case is related to the suicidal death of the appellant’s wife Mrs.Meenakshi. The appellant was charged for subjecting his wife to cruelty and harassment demanding dowry. The charge sheet was framed against the appellant, his mother and two brothers before the Trial Court. The court awarded a sentence u/s 304-B and imposed a fine of Rs.1000/- on each of them. The High Court affirmed the order of the Trial Court but acquitted the mother and two brothers and set aside the judgment of their conviction and order of sentence. Conviction of the appellant u/s 306 was set aside but a conviction on other grounds was sustained.

One of the factors was proved, presumption rests on the accused under section 113- B of the Indian Evidence Act, 1872. The court confirmed the order of conviction and sentence of the High Court on the basis of evidence on record. The court established the guilt of the appellant beyond a reasonable doubt. The Court accepted the factors considered by the High Court in convicting the appellant. This court found no reason to interfere with the judgment and order under appeal. Thus the court, in this case, dismissed the appeal and canceled the bail of the appellant and directed him to surrender before the Trial Court within four weeks

BECAUSE OF NON PROVING OF THE BALLISTIC EXPERTS REPORT, TESTIMONY OF THE EYEWITNESSES CANNOT BE DISCREDITED – SC

The Honourable Court posed the main question which arose for consideration was whether reliance should be placed on the statement of the eyewitnesses. The court observed, if the court was to believe the statement of the eyewitnesses and hold that they are truthful witnesses, then the appeal had to be dismissed. However, if a doubt is cast on the veracity of these two witnesses then the benefit of the doubt has to go to the accused. As far as the statements of these witnesses recorded in the case are concerned, they are almost identical and there are no major contradictions between them.

when the report of the ballistic experts have not been proved and all the bullets recovered from the spot have not been sent to the ballistic expert, the guns seized cannot be connected with the offence. Even if that be true, we cannot discredit the testimony of the eye­witnesses that two of the accused used guns. The guns seized may or may not be the guns used. However, when the ocular evidence is direct and clear in this regard, and this ocular evidence is fully supported by the medical evidence, the negligence of the investigation team cannot be used by the defence in support of their case. Therefore the Hon’ble Court found no merits in the appeal and is dismissed.

THE APPLICANT DOES NOT ACQUIRE ANY RIGHT UNDER THE LAW UNTIL HIS APPLICATION IS CONSIDERED AND SANCTIONED IN “PREMIUM FSI SCHEME”- SC

This appeal arises out of the impugned judgment passed by the Division Bench of the High Court of Madras in W.A. by the first respondent in and by which the Division Bench set aside the order of Single Judge and allowed the writ appeal thereby directing the appellant Chennai Metropolitan Development Authority (CMDA) to calculate the Premium FSI charges at the rate prevalent as on the date of filing of application by the first respondent Rajan Dev.

The point falling for consideration is whether the High Court was right in holding that the Premium FSI charges are payable only as per the pre-revised guideline value as on 04.05.2011 i.e. the date of filing of an application with a revised plan, by the first respondent?

The Division Bench did not keep in view the well settled principle that no right accrued to the applicant-builder by the mere filing of the application for approval and the right accrues only after approval is granted by the Government/concerned authorities. As a result, the impugned judgment dated 03.08.2016 passed by the High Court of Madras in W.A. No.2376 of 2013 is set aside and this appeal is allowed. The appellant-CMDA is at liberty to recover the balance Premium FSI charges from the first respondent in accordance with its regulations and rules. No costs.

SC have powers under Article 142 of the Constitution of India, has granted divorce on the ground of irretrievable breakdown of marriage

The court made a observation that the provisions of Article 142 of the Constitution provided a unique power to the Supreme Court, to do “complete justice” between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case. It was with this objective that the court finds it appropriate to take recourse to this provision in the present case. The court was of the view that an end to this marriage would permit the parties to go their own way in life after having spent two decades battling each other, and there can always be hope, even at this age, for a better life, if not together, separately.

The SC held that exercising our jurisdiction under Article 142 of the Constitution of India, grants a decree of divorce and dissolves the marriage inter se the parties forthwith. it is open for the parties to move appropriate proceedings for either enhancement of this maintenance or reduction and cessation thereof. We only hope that this aspect can also be reconciled between the parties once a decree of divorce is granted. The appeal is allowed leaving the parties to bear their own costs.

To base conviction solely on the circumstantial evidence, unless chain of circumstances is established conviction cannot be recorded

The SC perused the impugned judgments and other material placed on record. In this case, it was clear from the record that the conviction of the appellant herein is based on circumstantial evidence.

As the evidence on record is not sufficient to bring home the guilt of the accused, beyond a reasonable doubt. We are of the considered view that the appellant is entitled to benefit of the doubt, for acquittal from the charge framed against her.  For the aforesaid reasons, this criminal appeal is allowed. The judgment of the trial court dated as well as the impugned judgment of the High Court, in Criminal Appeal by the High Court of Delhi are set aside, consequently, the appellant is acquitted of the charge framed against her. As the appellant is on bail, her bail bonds stand canceled.

THE CUMULATIVE EFFECT OF THE DELAY AND LACHES CANNOT BE IGNORED: SC

The Delhi Development Authority has allowed the respondent no. 13 to construct a high­rise multistory group housing society in the University campus. The Writ Court denied the writ petition of the University including on the ground of delay and laches. The LPA petition was filed along with the condone delay petition for 916 days in the Delhi High Court.

whether the plea of public interest for delay in filing the appeal can be valid? Whether the delay in filing the petition can be qualified for less deliberate inaction and whether the dealy should be decided on the basis of the sufficient cause?

The SC in answering the matter of condonation of delay held that it should be in the nature of demonstrating “sufficient cause” to justify the delay which will be based on the facts of the case. The Supreme Court said that the writ petition was filled in a delay was properly justified by the Single Bench and the Division bench’s order in dismissing the LPA petition on the ground of delay is also justified. Therefore, the  SC dismissed the appeal.

ISSUES REGARDING PART CONSIDERATION SHOULD BE DETERMINED IN TRIAL COURT ITSELF – SC

The suit for Specific Performance was filed by the appellant in the Trail Court for the payment of remaining consideration is pending. The appellant also filed two temporary injunctions. The Trial Court passed an Interim Order saying that only the temporary injunction of restraining the respondent from altering the suit property to the third party till the case gets disposed and further it asked the appellant to deposit the balance sale consideration. Further, the appeal was brought to the High court by the appellant challenging the Interim Orders passed by the Trial Court. The Division Bench of High Court has passed an Interim Order to set aside the Order of Temporary Injunction passed by the Trial Court.

whether possession of the suit property was at all handed over to the Appellant or not? whether part consideration for the suit property was paid by the Appellant to the Respondent or not?

The Supreme Court held that both the question of fact should be decided by the Trail court in the proceedings. The Court is of the view that the Orders passed by the division bench of the High Court do not warrant any interference. The SC has not expressed any view on the merits of the case, it has directed the case to the XVI Additional District and Sessions Judge, Ranga Reddy District and it should be disposed preferably within one year from today. Therefore the Court dismissed the appeal.

STALE AND IRRELEVANT GROUNDS IN THE DETENTION ORDER BY THE DETAINING AUTHORITY IS A GROUND TO QUASH THE DETENTION ORDER – SC

The facts of the case were that the appellant was detained u/s 3 of the Telangana Prevention of Dangerous Activities Act 1986. An order of detention was issued by the Commissioner of Police, Rachakonda. This order sets out a reference to 14 cases under various heads of crime within Hyderabad City. The appellant filed an application for bail and was allowed by the Additional Metropolitan Magistrate on the ground that the investigation agency had failed to complete the investigation within the period allowed. Also, an order of detention was served on the appellant while he was still in jail custody. A writ petition was filed challenging the order of detention and the order of the state government confirmed the detention. The HC dismissed the writ petition challenging the order of detention which gave rise to the proceedings before this court under Article 136 of the Constitution.

The court after analyzing the arguments of the parties set aside the detention order on the grounds that the reference to stale grounds in the detention orders and the manner in which the order is confirmed. The court accordingly allowed the appeal and set aside the impugned judgment and order of the HC. The order of detention thus stands quashed.

In a review petition, it is not for the Court to re-appreciate the evidence and reach a different conclusion: SC

The prosecutrix was raped by the accused Ram Singh and petitioner Akshay Kumar Singh @ Thakur. They also committed an unnatural offence and inserted an iron rod in the private parts of the prosecutrix. They even harmed her friend and took away all their belongings. After twelve days she died in spite of being treated.

whether the petitioner has made out any ground indicating error apparent on the face of the record warranting review of SC judgment?

The Supreme court said that in a review petition the petitioner can not reproduce the same evidence and the content the same defence plea used before to get a supporting order. “We do not find any error apparent on the face of the record in consideration of evidence and rejection of the plea of alibi.” This Court held that the case is falling within “the rarest of rare cases”. We do not find that these findings suffer from any error apparent on the face of the record, the death penalty is confirmed.” Dismissal of the review petitions filed by the co-accused also delivered the same ground which was raised earlier “We do not find any error apparent on the face of the record in the appreciation of evidence or the findings of the judgment”. The review petition claimed by the petitioner is dismissed

Cannot claim relief on the strength of Article 14 of the Constitution of India, when it has been found they are not lawfully entitled to the same: SC

G.O. Ms. No. 162, Finance (Pay Cell) Department has allowed Selection Grade and Special Grade scales of pay to the 3000 employees. But the dispute here is it was not allowed to the appellant though they were equally placed as the other 3000 employees who were granted by the pay.

How the interpretation of G.O. Ms. No. 162 had been made?  Dispute Applicability to the pay scale of the drivers with respect to schedule 1 and schedule 2?

The SC held that “The High Court in the impugned judgment was correct in concluding that the Appellants cannot claim such relief on the strength of Article 14 of the Constitution of India, when once it has been found that they are not lawfully entitled to the same. We find no reason to interfere with the impugned judgment. The instant appeals are hereby dismissed, and the impugned judgment is confirmed.”

Department is required to assess the income of the Appellants after taking into account the revised Returns filed after amalgamation of the companies: SC

Appellant Nos.1 and 2/Transferee Companies filed their original Returns of Income on 30.09.2016 and 30.11.2016 respectively. Thereafter, they entered into Schemes of Arrangement and Amalgamation with 9 Transferor Companies in 2017. The Schemes were finally sanctioned and approved by the NCLT, Chennai vide final orders dated 20.04.2018 and 01.05.2018. The Appointed Date as per the Schemes was 01.01.2015. Consequently, the Transferor/ Amalgamating Companies ceased to exist with effect from the Appointed Date, and the assets, profits, and losses, etc. were transferred to the books of the Appellants/ Transferee Companies/Amalgamated Companies. The Schemes incorporated provisions for filing the revised Returns beyond the prescribed time limit since the Schemes would come into force retrospectively from the Appointed Date i.e. 01.01.2015.

Civil Appeals are allowed. The Department is directed to receive the revised Returns of Income for A.Y. 20162017 filed by the Appellants, and complete the assessment for A.Y. 20162017 after taking into account the Schemes of Arrangement and Amalgamation as sanctioned by the NCLT. Pending Applications, if any, are accordingly disposed of Ordered accordingly.”

The “common object” of an assembly is to be ascertained from the acts and language of the members comprising it: SC

Two persons Mahendra Singh and Lokesh were deceased, 5 persons were said as the accused in the beginning. One of the accused was deceased during the course of the trial. Three other accused were found as armed. The High Court acquitted the three respondents as the injuries not being matched.

The Supreme Court expressed its view that all the accused hared a common objective. The courts for the question based on the injuries on the two deceased and the injured persons is that the accused are surely more than two-person and it may be of five members. The determinative factors whether the accused has committed the offense as per Section 141 are the assembly consisting of five or more persons fully armed and who entertained one or more of the common objects.

The Supreme Court has set aside the order of the HC and allowed the appeal made by the state.

In case of life sentence or death sentence, learned advocates with minimum of 10 years practice alone can be appointed as Amicus Curiae to represent an accused: SC

A brief fact of the case is that the victim, a nine-year-old girl, was found missing and her body was found in an open field two days later. An FIR was registered regarding this and the appellant was arrested regarding this and after completion of the investigation, a charge sheet was filed before the Sessions Court. The case was dealt with and an order passed by the Trial Court accusing the appellant u/s 302 of IPC and awarded ‘death sentence’. When the appellant approached the HC challenging his conviction and sentence, it affirmed the view taken by the Trial Court and upheld the death sentence and other sentences imposed by the Trial Court.

The issue before the court is whether the free legal aid ensured real and meaningful assistance?

The court held that the counsel appointed for the appellant should have given sufficient opportunity to study the matter and it has decided to set aside the judgments passed by the Trial court and the High Court.

Employees who have completed 10 years or above are entitled for regularization of their services: SC

The appellants were appointed on an ad-hoc basis for the Ambedkar Nagar Judgeship. The initial appointment was extended from time to time. Later an advertisement was issued for the direct recruitment of Class III employees, which made the appellants file several writ petitions before the HC. A committee was formed by the order of District Judge comprising of 2 members of Judicial Officers, which reported some recommendations and the District Judge regularized the service of the appellants. However, their successor declared the regularization orders were non-est. The District Judge also withdrew his earlier order and also directed the recovery of emoluments. The appellants approached the Single Judge Bench of HC which dismissed the writ petition and imposed a cost of Rs.50000/-on each appellant. An appeal to the Divisional Bench of HC also dismissed the appeal but set aside the cost imposed. Being aggrieved by these orders the appellants approached the Supreme Court.

The appeals are allowed, the Judgement and order passed by the Single Judge of the High Court of Allahabad as well as Division Bench of the said High Court is quashed and set aside and the orders passed by the District Judge, Ambedkar Nagar are quashed and set aside and the consequential order of termination is also quashed and set aside. The order passed by the District   Judge,   Ambedkar   Nagar regularizing 14 the services of appellants with effect from 01.06.2012 is upheld. The termination of the appellants from their services is quashed and set aside and the appellants are directed to be reinstated forthwith with continuity in service for all the purposes including terminal benefits. However, in the facts and circumstances of the case, the appellants would not be entitled to back wages for the period during which they are out of employment.

SC: Suo Motu Writ Petition Criminal registered with the caption “Assessment of the Criminal Justice System in response to Sexual Offences”. [Order Attached]

The report shall be included by a probe, collection of evidence, forensic and medical evidence, recording of statement of victim and time frame for trial. The court said that it is the time to make alterations and adding the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. The court further said if it is found necessary to get some information with respect to the status submitted, the duty holders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature can be called to get a complete view of the case.

With the advancement of DNA science and its accuracy, the sampling for the purpose of Forensic examination and expeditious reports after a due examination is vital to the just adjudication of the case. The sampling for the purpose of a DNA test as well as other forensic tests like forensic odontology is essential in cases relating to rape. The SC may also call all the Chief Secretaries, DG Police of all States and Registrar General of all High Courts for getting the records when required. The SC finally said the matter registered as a Suo Motu Writ Petition Criminal with the caption “Assessment of the Criminal Justice System in response to Sexual Offences” to be listed on 7th February 2020.

Appointment should be made after following due procedure of the law: SC

Whether the appointment of the appellant on the post of Junior Accounts Clerk on 21.12.1990 was not validly made in accordance with the law? Whether by the dismissal of Writ Petition No.Nil of 1992 on 04.12.1992 filed against the consequential order dated 11.11.1992 issued to the petitioner, the appellant’s right to continue on his post shall come to an end? Whether reappointment of the appellant dated 01.01.1993 been limited only till 27.02.1993 after efflux of the said period appellant’s right to continue on the post shall come to an end? Whether by the dismissal of W.P.No.44384 of 1992 Shiv Kumar Rai versus Director Basic Education and others on 15.09.2001 shall result in terminating the vacancy on the post of Junior Accounts Clerk on which appellant was appointed and was working?

Thereby, this Honourable Court, after inferring the facts and circumstances of the case, gave its decision as under, “Learned Single Judge has not correctly appreciated the issues as noticed and discussed above. The Division Bench rested its opinion on one issue without taking into consideration subsequent events and the fact that the writ petition was dismissed as infructuous by efflux of time. Taking into consideration entire facts and circumstances, we are of the view that the judgment of learned Single Judge dated 02.02.2012, as well as the Division Bench, deserves to be set aside. We Order accordingly. The appeal is allowed.”

Super Annuated Air force officer not entitled to disability pension when disability is less than 20%: SC

The facts of the case are that Wing Commander S.P. Rathore at the time of the superannuation of his service, claims disability pension due to his disability aggravating at the time of his service. The disability is less than 20%.  Whether disability pension is at all payable or not by the Union of India in case of an Air Force Officer who is superannuated from service in course of duty and whose disability is less than 20%.

The Court observed that the Armed Forces Tribunal had applied the principles of rounding off without determining whether the Respondent before it would be entitled to disability pension at all. The Court based upon the examination of all provisions relevant to this case came to the conclusion that since the disability of the respondent is less than 20% he would not be entitled to disability pension. The Court also held that the applicability of Para 7.2 of the Circular does not arise at all.

The original appeal filed by the Respondent before The Armed Forces Tribunal shall stand dismissed.

Order 41 Rule 17(1) read with its explanation makes it explicit that the Court cannot dismiss the appeal on merits where the appellant remains absent on the date fixed for hearing: SC [Judgment Attached]

The appellants herein are the defendants and the respondents are the plaintiffs. The plaintiffs filed suit for declaration of their title, recovery of possession and mesne profits. The Trial Court dismissed the suit and the plaintiffs appealed to the Additional District Judge which allowed the appeal. The judgment of the Trial Court was set aside and the plaintiffs were declared as the owners of the suit land and they were entitled to recovery of the suit property. This judgment was challenged by the defendants before Guwahati High Court. While the District Judge declared his judgment the council for the defendants was not present to argue the matter. The HC dismissed the appeal on merits.

The question before this court is whether the HC is justified in dismissing the second appeal on merits in the absence of learned counsel for the appellants?

The court made the following observations, after hearing the arguments of the counsels. It observed that the explanation to sub-rule (1) of Rule 17 says that where the appellant does not appear, the court has no power to dismiss the appeal on merits.  That is if the appellant does not appear, the Court may dismiss the appeal for default of appearance but cannot dismiss the appeal on merits.  Thus the court decided to set aside the impugned judgment and decree of the High Court and remit the matter to the HC for fresh disposal of the case in accordance with the law.

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