10 April 2021 2:00 PM GMT
JUDGMENTS: 1. Whether Day Of Remand Is To Be Included For Considering A Claim For Default Bail? Supreme Court Refers To Larger Bench [Case: Enforcement Directorate v. Kapil Wadhawan; Citation: LL 2021 SC 118] Whether the day of remand is to be included or excluded, for considering a claim for default bail? The Supreme Court referred this issue to a larger bench. A bench...
1. Whether Day Of Remand Is To Be Included For Considering A Claim For Default Bail? Supreme Court Refers To Larger Bench
[Case: Enforcement Directorate v. Kapil Wadhawan; Citation: LL 2021 SC 118]
Whether the day of remand is to be included or excluded, for considering a claim for default bail? The Supreme Court referred this issue to a larger bench.
A bench comprising Justices Sanjay Kishan Kaul and Hrishikesh Roy noticed that, in State of MP v. Rustom & Ors.1995 (Supp) 3 SCC 221 , Ravi Prakash Singh v. State of Bihar (2015) 8 SCC 340 and M. Ravindran v. Intelligence Officer, Director of Revenue Intelligence, it was held that the date of remand is to be excluded for computing the permitted period for completion of investigation. On the other hand, the judgments in Chaganti Satyanarayan v. State of Andhra Pradesh (1986) 3 SCC 141 , CBI v. Anupam J Kulkarni (1992) 3 SCC 141 , State v. Mohd. Ashraft Bhat (1996) 1 SCC 432, State of Maharashtra v. Bharati Chandmal Varma (2002) 2 SCC 121, and Pragyna Singh Thakur v. State of Maharashtra (2011) 10 SCC 445, have held that the date of remand must be included for computing the available period for investigation for determining entitlement to default bail.
2. Contract Is Void If Prohibited By Statute Under A Penalty Even If It Does Not Expressly Declare It Void: Supreme Court
[Case: Asha John Divianathan v. Vikram Malhotra; Citation: LL 2021 SC 119]
The Supreme Court observed that a contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void. A bench comprising Justices AM Khanwilkar, Indu Malhotra and Ajay Rastogi observed that the condition predicated in Section 31 of the Foreign Exchange Regulation Act, 1973, of obtaining "previous" general or special permission of the Reserve Bank of India for transfer or disposal of immovable property situated in India by sale or mortgage by a person, who is not a citizen of India, is mandatory.
The bench clarified that the transactions which have already become final including by virtue of the decision of the court of competent jurisdiction, need not be reopened or disturbed in any manner because of this pronouncement.
3. Proceedings Under Section 34 Of Arbitration Act Also Covered By Moratorium Under Section 14 IBC: Supreme Court
[Case: P Mohanraj & Ors. v. M/s Shah Brothers Ispat Ltd.; Citation: LL 2021 SC 120]
A Bench comprising of Justices RF Nariman, Navin Sinha and KM Joseph observed that an application under Section 34 of the Arbitration and Conciliation Act to set aside an award is covered by moratorium under Section 14 of the Insolvency and Bankruptcy Code.
Section 34 proceeding is a proceeding against the corporate debtor in a court of law pertaining to a challenge to an arbitral award and would be covered just as an appellate proceeding in a decree from a suit would be covered, the bench headed by Justice RF Nariman observed in the judgment titled P Mohanraj & Ors. v. M/s Shah Brothers Ispat Ltd.
Also Read: Moratorium Under Section 14 IBC Covers Section 138 NI Act Proceedings Against Corporate Debtor For Cheque Dishonour: Supreme Court
4. Residential Accommodation For Nuns & Hostels For Students Can Claim Property Tax Exemption U/s 3(1)(b) of the Kerala Building Tax Act: Supreme Court
[Case: Government Of Kerala v. Mother Superior Adoration Convent; Citation: LL 2021 SC 121]
The Supreme Court held that residential accommodation for nuns and hostel accommodations for students which are attached to various educational institutions can claim property tax exemption under Section 3(1)(b) of the Kerala Building Tax Act, 1975.
"If nuns are living in a neighbouring building to a convent only so that they may receive religious instruction there, or if students are living in a hostel close to the school or college in which they are imparted instruction, it is obvious that the purpose of such residence is not to earn profit but residence that is integrally connected with religious or educational activity," a bench headed by Justice Rohinton Fali Nariman observed while upholding a full bench judgment of the Kerala High Court.
5. Insolvency Proceedings Maintainable Even If Winding Up Petition Is Pending Against Corporate Debtor: Supreme Court
[Case: A. Navinchandra Steels Pvt Ltd v. SREI Equipment Finance Ltd; Citation: LL 2021 SC 122]
The Supreme Court held that a petition either under Section 7 or Section 9 of the Insolvency and Bankruptcy Code is an independent proceeding which is unaffected by winding up proceedings that may be filed against the same company.
The bench comprising Justices RF Nariman and BR Gavai observed that a secured creditor stands outside the winding up and can realise its security de hors winding up proceedings.
In this appeal, the appellant's contention was that post admission of a winding up petition, no petition under Section 7 of the IBC can be filed. According to it, the effect of Section 446 of the Companies Act, 1956 (which is equivalent to Section 279 of the Companies Act, 2013) is that no suit or other legal proceeding can be initiated once there is admission of a winding up petition.
6. Writ Jurisdiction Under Article 226 Can Be Invoked To Quash FIR If It Is Found To Be Abuse Of Process Of Law: Supreme Court
[Case: Kapil Agarwal v. Sanjay Sharma; Citation: LL 2021 SC 123]
The Supreme Court observed that a High Court, invoking its powers under Article 226 of the Constitution of India, can quash an FIR if the same is found to be an abuse of process of law.
In this case, a writ petition preferred by the accused for quashing the first information report registered under under Sections 420/406 of the Indian Penal Code against them was dismissed by the Allahabad High Court. The accused's contention was that the FIR against him is a counterblast to the cheque bounce complaint filed against the complainant.
While allowing the appeal, the bench comprising Justices DY Chandrachud and MR Shah observed that the inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into weapon of harassment.
7. Amounts Paid By Indian Companies To Use Foreign Software Not 'Royalty';Not Income Taxable In India; No TDS Liability : Supreme Court
[Case: Engineering Analysis Centre for Excellence Private Ltd vs The Commissioner of Income Tax; Citation: LL 2021 SC 124]
Settling an important issue in the income tax law, a bench comprising Justices R F Nariman, Hemant Gupta and BR Gavai held that the amounts paid by Indian companies for the use of softwares developed by foreign companies do not amount to 'royalty' and that such payment do not give rise to income which is taxable in India. Therefore, there is no liability for Indian companies to deduct tax at source with respect to purchase of software from foreign companies.
"...the amounts paid by resident Indian end-users/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India, as a result of which the persons referred to in section 195 of the Income Tax Act were not liable to deduct any TDS under section 195 of the Income Tax Act", the court held.
8. Non-Explanation By Accused In Section 313 CrPC Statement Cannot Be Used As A Link To Complete Chain Of Circumstances: Supreme Court
[Case: Shivaji Chintappa Patil v. State Of Maharashtra; Citation: LL 2021 SC 125]
The Supreme Court observed that false explanation or non-explanation of the accused to the questions posed by the court under Section 313 of the Code of Criminal Procedure, cannot be used as a link to complete the chain.
It can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused, the bench comprising Justices RF Nariman and BR Gavai observed.
9. Limitation Period For Filing 'Section 34' Petition Commences From Date Of Receipt Of Signed Copy Of Arbitral Award By Parties: Supreme Court
[Case: Dakshin Haryana Bijli Vitran Nigam Ltd. v. M/S Navigant Technologies Pvt. Ltd.; Citation: LL 2021 SC 126]
A bench comprising Justices Indu Malhotra and Ajay Rastogi observed that the period of limitation for filing the Petition under Section 34 of the Arbitration and Conciliation Act would commence from the date on which the signed copy of the award was made available to the parties
In this case, a Petition was filed under Section 34 by Bijli Vitrain Nigam to challenge the arbitral award dated 27.04.2018 passed by a three-member tribunal (2:1) in favour of Navigant Technologies Pvt. Ltd. This petition was dismissed by the Civil Court on the ground that the copy of the majority award i.e. signed by two of the three arbitrators was received on 27.04.2018, and u/S. 34(3), the objections had to be filed within 3 months, which would expire on 27.07.2018. Even if the benefit of 30 days had been granted to the applicants, the petition ought to have been filed by 26.08.2018, whereas the objections had been filed on 10.09.2018, the court had held. The High Court affirmed this order.
10. Supreme Court Restores Appeal Before NGT Against Environmental Clearance Granted to Vishakapatnam Greenfield International Airport
[Case: Sridevi Datla v. Union of India; Citation: LL 2021 SC 127]
A bench comprising Justices L. Nageswara Rao and S. Ravindra Bhat set aside an order of National Green Tribunal which dismissed an appeal filed against the grant of environmental clearance for construction of the Greenfield International Airport, Bhogapuram, Vishakapatnam.
The NGT, to dismiss the appeal filed by Sridevi Datla, had refused to condone the delay. The delay was sought to be condoned on the ground that the clearance and related documents were voluminous and the matter required some technical expertise, requiring the papers to be forwarded to experts and lawyers in Delhi, and the inter se communication delay.
The issue considered by the Apex Court was whether the approach to the issue of limitation by the NGT was correct, and whether on a correct interpretation of law, the appeal under Section 16 was filed within the 90 days period, in the facts of this case. The bench agreed with the contention of the Centre that by virtue of Section 33 of the Act, the provisions of all other laws stand overridden and consequently, the question of extending the period of limitation by reference to Section 5 of the Limitation Act would not arise.
11. 'Systemic Fraud Or Irregularities Make Entire Selection Process Illegitimate': SC Upholds Cancellation Of Examination By Delhi Subordinate Services Selection Board
[Case: Sachin Kumar v. Delhi Subordinate Service Selection Board; Citation: LL 2021 SC 128]
A Bench comprising of Justices DY Chandrachud and MR Shah observed that DSSSB and GNCTD must now take adequate measures to ensure against the recurrence of such instances which erode the credibility of and public confidence in the recruitment process. We direct that a comprehensive exercise to re-visit the modalities and safeguards be carried out within a period of two months to ensure that the probity of the recruitment process in future is maintained.
"Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few who may not specifically be found to be involved in wrong-doing. But that is not sufficient to nullify the ultimate decision to cancel an examination where the nature of the wrong-doing cuts through the entire process so as to seriously impinge upon the legitimacy of the examinations which have been held for recruitment," the Bench observed while allowing the appeals filed by Delhi Government and DSSSB challenging the decision of the High Court affirming the orders of the Central Administrative Tribunal which had set aside the annulment of the recruitment process.
12. 'Not Seditious To Have Views Different From Govt': Supreme Court Dismisses Plea Against Ex-J&K CM Farooq Abdullah For Remarks On Article 370 With 50K Cost
[Case: Rajat Sharma v. Union of India; Citation: LL 2021 SC 129]
"It is not seditious to have views different from the Govt," observed a Bench comprising of Justices Sanjay Kishan Kaul and Hemant Gupta while dismissing a PIL seeking action against former Chief Minister of Jammu and Kashmir, Farooq Abdullah, for his comments on abrogation of Article 370 of the Constitution.
The plea filed by Rajat Sharma and Dr. Neh Srivastava alleged that Abdullah made a live statement that for restoring Article 370, he would take help from China. They further alleged that the former CM is trying to "hand over" Kashmir to China and thus, he should be prosecuted for Sedition under Section 124A of IPC.
13. Evidence Of Interested Person Can Be Considered If It Is Corroborated: Supreme Court
[Case: Rahul v. State of Haryana; Citation: LL 2021 SC 130]
A Bench comprising of Justices Ashok Bhushan and R. Subhash Reddy observed that the evidence of interested person can be considered provided such evidence is corroborated by other evidence on record.
In this case, the accused was concurrently convicted in a murder case. The prosecution case was that the accused had murdered the deceased because of the alleged relationship between his wife and the deceased. Before the Apex Court in appeal, he contended that two witnesses in this case, are brother and mother respectively of the deceased, and thus are interested witnesses and the conviction is based on the testimony of these interested witnesses, to prove that deceased was last seen with the accused. Opposing this contention, the state contended that merely because witnesses who are brother and mother of the deceased were examined to prove the case of the prosecution, same is no ground to discard their testimony, if the same is corroborated along with other oral and documentary evidence on record.
14. Dying Declaration Cannot Be Discarded Merely Because Relatives Of Deceased Were Present In Hospital While Recording It: Supreme Court
[Case: Satpal v. State of Haryana; Citation: LL 2021 SC 131]
A Bench comprising of Justices Ashok Bhushan and R. Subhash Reddy observed that a dying declaration cannot be disbelieved merely because parents and relatives of the deceased were present in the hospital while recording it.
"It is quite natural that when such an incident happens, the parents and other relatives try to reach the hospital immediately. Merely because they were in the hospital, the same is no ground to disbelieve the dying declaration, recorded by the Magistrate", the bench said while dismissing the appeal filed by a murder accused.
In the declaration, recorded by the Judicial Magistrate, the deceased stated that the accused has poured kerosene oil and set her ablaze. Challenging the concurrent conviction, the accused before the apex court contended that the dying declaration was tutored one and the same was made at the instance of family members of the deceased, who were there with the deceased in hospital at the relevant time. According to his version, the deceased made attempt to commit suicide, and he tried his best to extinguish the fire.
15. OBC Reservation Cannot Exceed 50%: Supreme Court Reads Down Section 12(2)(c) Maharashtra Zilla Parishads and Panchayat Samitis Act
[Case: Vikas Kishanrao Gawali v. State Of Maharashtra; Citation: LL 2021 SC 132]
The Supreme Court read down Section 12(2)(c) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 which provides reservation of 27 per cent of seats in the Zilla Parishads and Panchayat Samitis.
"Reservation in favour of OBCs in the concerned local bodies can be notified to the extent that it does not exceed aggregate 50 per cent of the total seats reserved in favour of SCs/STs/OBCs taken together," the bench comprising Justices AM Khanwilkar, Indu Malhotra and Ajay Rastogi observed.
The court said that the rigid interpretation of the provision would be violative of the dictum laid down by the Constitution bench in K. Krishna Murthy (Dr.) & Ors. v. Union of India, (2010) 7 SCC 202 that the State legislations providing for reservation of seats in respect of OBCs, it must ensure that in no case the aggregate vertical reservation in respect of SCs/STs/OBCs taken together should exceed 50% of the seats in the concerned local bodies.
16. Sole Proprietorship Will Fall Under International Commercial Arbitration If Proprietor Is Foreign Resident: Supreme Court
[Case: Amway India v. Ravindranath Rao & Anr.; Citation: LL 2021 SC 133]
A bench comprising Justices RF Nariman and BR Gavai held that a sole proprietorship will fall under international commercial arbitration if the proprietor is a habitual resident of a foreign country, notwithstanding the fact that the proprietary concern is carrying out business in India.
The Bench set aside an order of the Delhi High Court appointing an arbitrator in the case Amway India v. Ravindranath Rao, holding that the High Court had no jurisdiction as the dispute was an international commercial arbitration within the meaning of Section 2(1)(f) of the Arbitration and Conciliation Act.
17. Application Under Order IX Rule 13 CPC Can Be Allowed Only When Sufficient Cause Is Made Out To Set Aside Ex Parte Decree: Supreme Court
[Case: Subodh Kumar v. Shamim Ahmed; Citation: LL 2021 SC 134]
A bench comprising Justices Ashok Bhushan and R. Subhash Reddy observed that an application under Order 9 Rule 13 of the Code of Civil Procedure cannot be automatically granted and can be allowed only when sufficient cause is made out to set aside the ex parte decree.
In this case, the tenant had filed an application to set aside an ex-parte decree against him which was dismissed by the Trial Court on the ground that no deposit was made by the tenant as required by Section 17 of the Provincial Small Cause Courts Act, 1887 along with the said application. The High Court remanded the matter back to the trial court for reconsideration of tenant's application under Order 9 Rule 13 CPC and Section 5 of the Limitation Act in accordance with law.
18. Aim Of Every Court Is To Discover The Truth: Supreme Court Explains Scope Of Section 311 CrPC
[Case: VN Patil v. K. Niranjan Kumar; Citation: LL 2021 SC 135; Case: State v. Tr N Seenivasagan; Citation: LL 2021 SC 136]
The Supreme court briefly explained the scope of Section 311 of the Code of Criminal Procedure in its two recent judgments. Section 311 deals with the power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case, the provision reads.
The Apex Court bench observed that the object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side.
It also observed that the true test for invoking Section 311 CrPC is whether it appears to the Court that the evidence of such person who is sought to be recalled is essential to the just decision of the case.
19. No Allegation That Promise To Marry Was False At The Inception: Supreme Court Quashes Rape Case
[Case: Sonu @ Subhash Kumar v. State of Uttar Pradesh; Citation: LL 2021 SC 137]
A Division Bench comprising of Justices DY Chandrachud and MR Shah quashed an FIR alleging rape observing that there is no allegation to the effect that the promise to marry given by the accused was false at the inception.
The court also referred to the judgment in Pramod Suryabhan Pawar v. State of Maharashtra in which it was observed thus:
"To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
While allowing the appeal, the bench observed that in this case there was only a subsequent refusal on the part of the accused to marry the prosecutrix which gave rise to the registration of the FIR.
20. Reservation Category Candidates Who Make It On Their Own Merit Have To Be Adjusted Against General Category : SC Reiterates
[Case: State of Tamil Nadu & Ors. v. K Shobhana Etc; Citation: LL 2021 SC 138]
A three judge bench comprising Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy reiterated that reservation category candidates, who score more than the cut-off marks for the general category candidates, have to be adjusted against general category based on their meirt and not reserved category.
"The principle that such of the reservation category candidates who make it on their own merit have to be adjusted against the general category candidates has not been in doubt", the Court observed.
21. Time Is A Crucial Facet Of Scheme Under IBC; Resolution Applicant Must Be Fair In Its Dealings: Supreme Court
[Case: Kridhan Infrastructure Pvt Ltd. v. Venkatesan Sankaranarayan; Citation: LL 2021 SC 139]
Time is a crucial facet of the scheme under the IBC, the Supreme Court said while dismissing the appeal filed by a Resolution applicant.
In this case, the National Company Law Tribunal [NCLT] allowed the liquidation of the Corporate Debtor to proceed. Upholding this order, the National Company Law Appellate Tribunal [ NCLAT] observed that the applicant had failed to implement the Resolution Plan for a period of over eight months.
In appeal, the bench comprising Justices DY Chandrachud and MR Shah noted that sufficient opportunities were granted to the applicant earlier during the pendency of the proceedings both before the NCLT and NCLAT. The orders of the NCLT and NCLAT make it abundantly clear that despite the grant of sufficient time, the appellant has not been able to comply with the terms of the Resolution Plan, it said.
22. Anticipatory Bail Once Granted Does Not Automatically End With Filing Of Chargesheet, Reiterates Supreme Court
[Case: Dr. Rajesh Pratap Giri v. State Of UP; Citation: LL 2021 SC 140]
A bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose reiterated that the anticipatory bail once granted does not automatically end on the filing of the chargesheet.
In this case, the Allahabad High Court, on an application made by the complainant held that the anticipatory bail granted to the accused by the Trial Court came to an end with the filing of a chargesheet, and directed him to surrender and apply for regular bail.
The Top Court noted that in Sushila Aggarwal and Ors. v. State (NCT of Delhi) and Anr., (2020) 5 SCC 1, it was observed that 'mere fact that an accused is given relief under Section 438 at one stage, per se does not mean that upon the filing of a chargesheet, he is necessarily to surrender or/and apply for regular bail.'
23. Motor Accident Compensation: Multiplier Method Has To Be Applied For Future Prospects And Advancement In Life And Career: Supreme Court
[Case: Karthik Subramanian v. B. Sarath Babu; Citation: LL 2021 SC 141]
A Bench of Justices Sanjay Kishan Kaul and Hemant Gupta observed that, while computing motor accident compensation, multiplier method has to be applied for future prospects and advancement in life and career.
"In our view, this issue is no more res integra in view of Sandeep Khanduja's case (supra) and Erudhaya Priya's case (supra) opining that multiplier method has to be applied for future prospects and advancement in life and career. Thus, the same principle would have to apply and learned counsel for insurance Company cannot seriously contend to the contrary", the bench observed in the facts of the case.
24. NCLT Has Jurisdiction To Adjudicate Contractual Disputes Which Arise Solely From Or Which Relate To Corporate Debtor's Insolvency: Supreme Court
[Case: Gujarat Urja Vikas Nigam Limited v. Amit Gupta; Citation: LL 2021 SC 142]
The Supreme Court observed that the National Company Law Tribunal has jurisdiction to adjudicate contractual disputes, which arise solely from or which relate to the insolvency of the Corporate Debtor.
However, for adjudication of disputes that arise dehors the insolvency of the Corporate Debtor, the RP must approach the relevant competent authority, the bench comprising Justices DY Chandrachud and Justice MR Shah observed while upholding the order of the National Company Law Tribunal which stayed the termination by the Gujarat Urja Vikas Nigam Limited of its Power Purchase Agreement with Astonfield Solar (Gujarat) Private Limited.
25. Fed Up Of Seeing 'Cut-Copy-Paste' Orders Of High Courts; Independent Reasons Need To Be Cited: Justice Chandrachud
[Case: Union Public Service Commission v. Bibhu Prasad Sarangi; Citation: LL 2021 SC 143]
"One of the problems of the computer-age is copying and pasting of orders! I am fed-up of seeing cut-copy-paste orders of High Courts", remarked Justice DY Chandrachud. "Independent reasons have to be cited for affirming an order! There has to be an independent application of the mind! Cut, copy, paste from the Tribunal's judgment only adds to the volume of pages but does not answer the core issue of appeal!", added the judge.
The bench, also comprising Justice MR Shah, was considering the UPSC's SLP arising out of a Orissa High Court decision upholding the order of the CAT, Cuttack Bench on the issue whether the respondent could be denied a place in the IAS owing to a disciplinary penalty imposed in 2011. Justices Chandrachud and Shah noted that it is the UPSC Rules under Article 320 and not the DoPT guidelines which would hold fort in the matter and set aside the HC order, restoring the plea before the HC.
26. Supreme Court Ends Extension Of Limitation; Period From 15.03.2020 To 14.03.2021 Excluded From Limitation Period
[Case: In Re: Cognizance Of Extension Of Limitation; Citation: LL 2021 SC 144]
A bench comprising Chief Justice of India SA Bobde, Justices L Nageswara Rao, and S Ravindra Bhat lifted the extension of the limitation period for filing of cases granted by the Court in March last year on account of COVID-19 pandemic and the national lockdown. "We are of the opinion that the order dated15.03.2020 has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end", the Court observed.
"Though,we have not seen the end of the pandemic, there is considerable improvement. The lockdown has been lifted and the country is returning to normalcy. Almost all the Courts and Tribunals are functioning either physically or by virtual mode", the bench observed.
27. Magistrates & Trial Judges Also Have Responsibility In Safeguarding Citizens' Fundamental Right: Supreme Court
[Case: Krishna Lal Chawla v. State Of UP; Citation: LL 2021 SC 145
The Magistrates and trial Judges have as much, if not more, responsibility in safeguarding the fundamental rights of the citizens of India as the highest court of this land, remarked a Bench of Justices Mohan M. Shantanagoudar and R. Subhash Reddy in a judgment in which it emphasized the role of the lower Judiciary in preventing abuse of criminal court process.
This is a case that should not have been allowed to reach as far as this Court, the bench said while quashing an order of Magistrate who issued process in a complaint lodged after six years of filing a NonCognizable Report with respect to same incident against the same accused.
28. Person Who Has Not Drawn The Cheque Cannot Be Prosecuted U/s 138 NI Act Even In Case Of Joint Liability: Supreme Court
[Case: Alka Khandu Avhad v. Amar Syamprasad Mishra; Citation: LL 2021 SC 146]
A Bench comprising Justices DY Chandrachud and MR Shah observed that, even in case of a joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an account maintained by him, cannot be prosecuted for the offence under Section 138 of the Negotiable Instruments Act.
"A person might have been jointly liable to pay the debt, but if such a person who might have been liable to pay the debt jointly, cannot be prosecuted unless the bank account is jointly maintained and that he was a signatory to the cheque," the bench held.
29. Arbitration: Supreme Court Suggests Amendments To Sections 11(7), 37 To Bring Section 8 & 11 At Par On Appealability
[Case: Pravin Electricals Pvt. Ltd. v. Galaxy Infra and Engineering Pvt. Ltd.; Citation: LL 2021 SC 147]
A Bench comprising of Justices RF Nariman, BR Gavai and Hrishikesh Roy observed that the amendments to Section 11(7) and 37 of the Arbitration and Conciliation Act, 1996 might be necessary so that the orders passed under Section 8 and 11 are brought on par as far as appealability is concerned.
Section 8, which deals with the power of a court to refer parties to arbitration, was amended in 2015 to state that such reference should not be made unless the court finds that prima facie a valid arbitration agreement exists.
Also, Section 37 was amended in 2015 to allow for appeals against an order refusing to refer parties to arbitration under Section 8.
These amendments were done on the basis of recommendations of the Law Commission of India. However, no amendment was made to Section 37 to allow appeal against an order refusing to appoint an arbitrator under Section 11 of the Act, despite the fact that such a recommendation was also made by the Law Commission.
30. Criminal Case Ought To Be Inquired And Tried Ordinarily Where The Cause Of Action Has Accrued: Supreme Court
[Case: Swaati Nirkhi v. State (NCT Of Delhi); Citation: LL 2021 SC 148]
A bench comprising Justices Ashok Bhushan and Indu Malhotra reiterated that a criminal case ought to be inquired and tried ordinarily where the cause of action has accrued. The bench observed thus while dismissing a transfer petition filed by accused seeking transfer of criminal case from the Court of Metropolitan Magistrate at New Delhi to the Court of Metropolitan Magistrate at Allahabad (Prayagraj), Uttar Pradesh.
In this case, FIR was filed under Section 389 read with 34 IPC against 4 accused. According to the complainant, he learnt from the newspaper reports and T.V. media report that the accused had falsely alleged that she was gang raped in his house. It was also stated that he had received messages to pay Rs. 5 Crore otherwise he would be arrested on the ground of gang rape. Putting person in fear of accusation of offence, in order to commit extortion, is an offence punishable under Section 389 IPC.
31. Section 313 CrPC Statement By Accused Is Not A Substantive Evidence To Rebut Presumption Under Section 139 NI Act: Supreme Court
[Case: Sumeti Vij v. Paramount Tech Fab Industries; Citation: LL 2021 SC 149]
A bench comprising Justices Indu Malhotra and Ajay Rastogi observed that the statement of the accused recorded under Section 313 of the Code of Criminal Procedure is not a substantive evidence of defence to rebut the presumption under Section 139 of the Negotiable Instruments Act that the cheques were issued for consideration. The bench was considering an appeal against the judgment of the High Court of Himachal Pradesh holding the accused guilty of offence under Section 138 of the Negotiable Instruments Act.
The court noted that the accused has only recorded her statement under Section 313 of the Code, and has not adduced any evidence to rebut the presumption that the cheques were issued for consideration. On the other hand, the complaints were filed by placing all documentary evidence in support of the complaint duly exhibited, and three witnesses in support thereof were examined, and was able to establish and discharge the burden of proof.
32. Blanket Order Of Protection From Arrest Cannot Be Passed By High Court While Dismissing A Petition U/s 482 CrPC: Supreme Court
[Case: Ravuri Krishna Murthy v. State of Telangana; Citation: LL 2021 SC 150]
A Bench comprising of Justices DY Chandrachud and MR Shah observed that a blanket order of protection from arrest cannot be passed by the High Court while dismissing a petition filed under Section 482 of Code of Criminal Procedure seeking quashing of FIR.
The issue raised in this appeal was whether the High Court of Andhra Pradesh was justified in passing a blanket direction restraining the police from arresting the accused while at the same time having come to the conclusion that there was no merit in the petition for quashing under Section 482.
The Apex court observed that such a direction by the High Court has the effect of impeding the course of the investigation and has no basis or justification in law.
33. SLP Filed Only Against 'Review Order' Of HC Not Maintainable, Reiterates Supreme Court
[Case: Sudarshan Budek v. State Of Odisha; Citation: LL 2021 SC 151]
A Bench comprising of Justices Sanjay Kishan Kaul and R. Subhash Reddy reiterated that Special leave Petitions filed only against the order of the High Court in Review Petition is not maintainable.
In this case, the special leave petitions against the substantive order were dismissed in 2010 without any liberty to file a review application(s) or approach the Apex Court again in case of an adverse verdict in the review application(s). Thereafter the review application(s) were filed by the petitioners before the High Court, which were dismissed. Against this dismissal of review petition by the High Court, Special Leave Petition was filed.
"It is now not open to the petitioners to seek leave of this Court to file Special leave petitions only against the review order(s) in view of the judgment of this Court in the case of Municipal Corporation of Delhi MCD v. Yashwant Singh Negi- (2020) 9 SCC 815. The special leave petitions are dismissed as not maintainable," the Court held.
34. An Officer Who Did The Assessment Could Only Undertake Re-assessment Under Section 28 (4) Of Customs Act: Supreme Court
[Case: Canon India Private Limited v. Commissioner Of Customs; Citation: LL 2021 SC 152]
A bench comprising CJI SA Bobde, AS Bopanna and V. Ramasubramanian observed that an officer who did the assessment, could only undertake re-assessment under Section 28 (4) of the Customs Act.
The issue considered by the Court in this case was whether the Directorate of Revenue Intelligence had authority in law to issue a show cause notice under Section 28(4) of the Act for recovery of duties allegedly not levied or paid when the goods have been cleared for import by a Deputy Commissioner of Customs who decided that the goods are exempted. In this case, a show cause notice was issued under Section 28 (4) to Canon India Private Limited alleging that the Customs Authorities had been induced to clear the cameras by wilful mis-statement and suppression of facts about the cameras.
The bench observed that where one officer has exercised his powers of assessment, the power to order re-assessment must also be exercised by the same officer or his successor and not by another officer of another department though he is designated to be an officer of the same rank. In our view, this would result into an anarchical and unruly operation of a statute which is not contemplated by any canon of construction of statute.
35. Limitation Period For Filing 'Section 11' Application Seeking Appointment Of Arbitrator Governed By Article 137 Limitation Act: Supreme Court
[Case: Bharat Sanchar Nigam Ltd. v. Nortel Networks India Pvt. Ltd.; Citation: LL 2021 SC 153]
The period of limitation for filing an application under Section 11 of the Arbitration and Conciliation Act would be governed by Article 137 of the First Schedule of the Limitation Act, and will begin to run from the date when there is failure to appoint the arbitrator, the Supreme Court held. In rare and exceptional cases, where the claims are ex facie time barred, and it is manifest that there is no subsisting dispute, the Court may refuse to make the reference, the bench comprising Justices Indu Malhotra and Ajay Rastogi held.
The court also suggested amendment of Section 11 of the Act to provide a period of limitation for filing an application under this provision, which is in consonance with the object of expeditious disposal of arbitration proceedings.
36. Mere Existence Of Civil Remedies Not A Ground To Quash Criminal Proceedings: Reiterates Supreme court
[Case: Priti Saraf v. State Of NCT Of Delhi; Citation: LL 2021 SC 154]
A bench comprising of Justices Indu Malhotra and Ajay Rastogi observed that existence of civil remedies by itself is not a ground to quash criminal proceedings. It observed that simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the complainant, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings.
The bench said that to exercise powers under Section 482 CrPC, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness.
37. NCLT/NCLAT Can't Interfere With Commercial Wisdom Of CoC Except Within Limited Scope Under Sections 30 & 31 IBC : Supreme Court
[Case: Kalparaj Dharamshi & Anr. v. Kotak Investment Advisors Ltd & Ors; Citation: LL 2021 SC 155]
A 3-judge bench comprising Justices AM Khanwilkar, BR Gavai and Krishna Murari reiterated that the National Company Law Tribunal (NCLT) or the National Company Law Appellate Tribunal(NCLAT) cannot interfere with the 'commercial wisdom' of the Committee of Creditors(CoC), except within the limited scope under Sections 30 and 31 of the Insolvency and Bankruptcy Code(IBC).
Based on this well settled principle, it set aside an order of the NCLAT which had annulled the decision of CoC to accept a resolution plan.
38. Non-Filling Of Medical Seats Is Not A Solution: SC Declares Rule 12 (8)(a) Of Madhya Pradesh Chikitsa Shiksha Pravesh Niyam Unconstitutional
[Case: Index Medical College, Hospital & Research Centre v. State of Madhya Pradesh; Citation: LL 2021 SC 156]
A bench comprising Justices L. Nageswara Rao and Indira Banerjee held that Rule 12 (8) (a) of the Madhya Pradesh Chikitsa Shiksha Pravesh Niyam, 2018 is unconstitutional as violative of Article 14 of the Constitution of India.
According to Rule 12 (8) (a), the vacant seats as a result of allotted candidates from MOP-UP round not taking admission or candidates resigning from admitted seat shall not be included in the college level counselling (CLC) being conducted after MOP-UP round.
In this case, the Writ Petitions filed by Index Medical College, Hospital and Research Centre and Arushi Mahant and Others challenging Rule 12 (8) (a) as being violative of Articles 14 and 19 (1)(g) were dismissed by a Division Bench of the High Court of Madhya Pradesh, Bench at Indore. Before the Apex Court in appeal, it was contended that proscribing medical institutions from filling up seats which fall vacant due to candidates in the mop-up round not taking admission or candidates submitting resignation after taking admission amounts to an unreasonable restriction. The state justified the Rule 12 (8) contending that the same is made with the objective that less meritorious candidates do not steal a march over those who have higher merit.
39. Single Bench Hearing Transfer Petition Cannot Invoke Article 142 To Pass A Decree Dissolving Marriage By Mutual Consent: Supreme Court
[Case: Sabita Shashank Singh v. Shashank Shekhar Singh; Citation: LL 2021 SC 157]
The Supreme Court observed that its single bench while hearing a Transfer Petition cannot invoke power under Article 142 of the Constitution to pass a decree for dissolving a marriage by mutual consent.
In this case, the parties (husband and wife) to a transfer petition before the Supreme Court filed a joint application for divorce by mutual consent of the parties. They requested the court to invoke jurisdiction under Article 142 of the Constitution of India, and to dispense with the compliance of some of the procedural formalities and timeline contemplated in Section 13B of the Hindu Marriage Act. The transfer petition was filed by the wife seeking transfer of the divorce petition filed by the husband from the Family Court, Pune, Maharashtra to the Principal Judge, Family Court, Gautam Budh Nagar, Uttar Pradesh.
40. Supreme Court Asks Govt Employees Holding Post Of State Election Commissioner To Immediately Step Down As SEC
[Case: State of Goa and another v. Fouzia Imtiaz Shaik; Citation: LL 2021 SC 158]
While holding that serving government employees cannot simultaneously function as State Election Commissioners, a bench comprising Justices RF Nariman, BR Gavai and Hrishikesh Roy also gave a categorical direction that such officers should immediately step down as SECs.
The Court passed this important direction in exercise of powers under Article 142 of the Constitution to "ensure that the constitutional mandate of an independent State Election Commission which is to conduct elections under Part IX and IXA of the Constitution be strictly followed in the future".
Also Read: State Election Commissioners Must Be Independent Persons Who Are Not Holding Posts Under Central Or State Govts : SC
41. Section 195(1)(b)(i) CrPC Does Not Bar Prosecution By Investigating Agency For Offence U/s 193 IPC Committed During Investigation Stage
[Case: Bhima Razu Prasad v. State; Citation: LL 2021 SC 159]
The Supreme Court this week held that the prosecution by the investigating agency for offence punishable under Section 193 IPC [for fabricating false evidence] committed during the stage of investigation will not be barred under Section 195(1)(b)(i) CrPC if the investigating agency has lodged complaint or registered the case prior to commencement of proceedings and production of such evidence before the Trial Court.
In such circumstance, the said offences would not be considered an offence committed in, or in relation to, any proceeding in any Court for the purpose of Section 195(1)(b)(i), CrPC, the bench comprising Justices Mohan M. Shantanagoudar and Vineet Saran observed.
42. Person Ineligible U/s 29A IBC To Submit Resolution Plan Cannot Propose Scheme Of Compromise & Arrangement U/s 230 Companies Act 2013: Supreme Court
[Case: Arun Kumar Jagatramka v. Jindal Steel and Power Ltd; Citation: LL 2021 SC 160]
The Supreme Court held that a person who is ineligible under Section 29A of the Insolvency Bankruptcy Code to submit a resolution plan, cannot propose a scheme of compromise and arrangement under Section 230 of the Companies Act, 2013.
A bench comprising Justices DY Chandrachud and MR Shah also upheld the constitutional validity of Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, which stipulate that a person who is not eligible under the IBC to submit a resolution plan for insolvency resolution of the corporate debtor shall not be a party in any manner to such compromise or arrangement.
The Court observed thus while dismissing the appeals against National Company Law Appellate Tribunal and also a writ petition challenging constitutional validity of Regulation 2B Of Liquidation Process Regulations. NCLT, in these cases, held that a person who is ineligible under Section 29A of the Insolvency Bankruptcy Code to submit a resolution plan, is also barred from proposing a scheme of compromise and arrangement under Section 230 of the Companies Act, 2013.
43. Accused Can Be Summoned U/s 319 CrPC Even On The Basis Of Examination-In-Chief Of Witness: Supreme Court
[Case: Sartaj Singh v. State of Haryana; Citation: LL 2021 SC 161]
A bench comprising Justices DY Chandrachud and MR Shah observed that an accused can be summoned under Section 319 of the Code of Criminal Procedure on the basis of even examination in chief of the witness and the Court need not wait till his cross examination.
The bench observed that If on the basis of the examination in chief of the witness the Court is satisfied that there is a prima facie case against the proposed accused, the Court may in exercise of powers under Section 319 CrPC array such a person as accused and summon him to face the trial.
44. Seriousness Of Offence A Relevant Consideration While Considering The Grant Of Bail, Reiterates Supreme Court
[Case: Naveen Singh v. State Of Uttar Pradesh; Citation: LL 2021 SC 162]
Seriousness of the offence is one of the relevant considerations while considering the grant of bail, a bench comprising Justices DY Chandrachud and MR Shah reiterated.
"The High Court has not at all considered that the accused is charged for the offences under Sections 420, 467, 468, 471, 120B IPC and the maximum punishment for offence under Section 467 IPC is 10 years and fine/imprisonment for life and even for the offence under Section 471 IPC the similar 18 punishment. Apart from that forging and/or manipulating the court record and getting benefit of such forged/manipulated court record is a very serious offence. If the Court record is manipulated and/or forged, it will hamper the administration of justice. Forging/manipulating the Court record and taking the benefit of the same stands on altogether a different footing than forging/manipulating other documents between two individuals. Therefore, the High Court ought to have been more cautious/serious in granting the bail to a person who is alleged to have forged/manipulated the court record and taken the benefit of such manipulated and forged court record more particularly when he has been chargesheeted having found prima facie case and the charge has been framed," the bench observed while taking note of the allegations raised in the FIR against the accused.
45. Writ Petition Under Article 226 Not Maintainable Against Orders Passed By State Consumer Commission: Supreme Court
[Case: Mehra Bal Chikitsalaya Evam Navjat Shishu ICU v. Manoj Upadhyaya; Citation: LL 2021 SC 163]
A bench of Justices Navin Sinha and Krishna Murari opined that a writ petition under Article 226 of the Constitution challenging judgments and orders passed by the State Consumer Disputes Redressal Commission is not maintainable.
"We cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India," it was observed.
46. All Consumer Complaints Filed Before CPA 2019 Should Be Heard By Fora As Per Pecuniary Jurisdiction Under CPA 1986: Supreme Court
[Case: Neena Aneja & Ors. v. Jai Prakash Associates Ltd.; Citation: LL 2021 SC 164]
The Supreme Court held that consumer complaints filed before the coming into effect of the Consumer Protection Act 2019(CPA 2019) should continue in the fora in which they were filed as per the pecuniary jurisdiction under the previous Consumer Protection Act of 1986(CPA 1986).
A bench comprising Justices DY Chandrachud and MR Shah set aside the directions of the National Consumer Disputes Redressal Commission that the previously instituted cases as per the 1986 Act should be transferred to the respective fora as per the new pecuniary limits under the 2019 Act.
"...we have come to the conclusion that proceedings instituted before the commencement of the Act of 2019 on 20 July 2020 would continue before the fora corresponding to those under the Act of 1986 (the National Commission, State Commissions and District Commissions) and not be transferred in terms of the pecuniary jurisdiction set for the fora established under the Act of 2019", the bench observed.
47. Default Bail: State Cannot Take Advantage Of Filing One Charge Sheet First And Seeking Time To File Supplementary Charge-sheets To Extend The Time Limit U/S 167(2)
[Case: Fakhrey Alam v. State of Uttar Pradesh; Citation: LL 2021 SC 165]
A bench comprising Justices Sanjay Kishan Kaul and R. Subhash Reddy observed that the time period for investigation specified under Section 167 of the Code of Criminal Procedure cannot be extended by seeking to file supplementary charge sheet qua UAPA offences.
The Court while granting default bail to Fakhrey Alam, a person accused under Section 18 of the UAPA Act, reiterated that default bail under first proviso of Section 167(2) of the Cr.P.C. is a fundamental right and not merely a statutory right.
"We do not think that the State can take advantage of the fact that in one case there is one charge sheet and supplementary charge sheets are used to extend the time period in this manner by seeking to file the supplementary charge sheet qua the offences under the UAPA Act even beyond the period specified under Section 167 of the Cr.P.C beyond which default bail will be admissible, i.e., the period of 180 days. That period having expired and the charge sheet not having been filed qua those offences (albeit a supplementary charge sheet), we are of the view the appellant would be entitled to default bail in the aforesaid facts and circumstances," the court said.
48. "Insurer Should Deposit Award In Bank Account Maintained By MACT By RTGS/NEFT': SC Issues Directions For Uniform Procedure In Granting Motor Accident Compensation
[Case: Bajaj Allianz General Insurance Company Private Ltd. v. Union of India; Citation: LL 2021 SC 166]
issued a slew of directions regarding process of disbursement of compensation as well as expediting the matter before the MACTs across the country. According to these directions, jurisdictional police station has to submit an Accident Information Report about the accident to the tribunal and insurer within first 48 hours either over email or a dedicated website. They shall also submit a detailed accident report to them within three months.
49. Family Court Does Not Have Plenary Powers To Do Away With Mandatory Procedural Requirements: Supreme Court
[Case: Aman Lohia v. Kiran Lohia; Citation: LL 2021 SC 167]
A bench comprising Justices AM Khanwilkar, BR Gavai and Krishna Murari observed that Family Courts does not have plenary powers to do away with the mandatory procedural requirements.
Family Court is expected to follow procedure known to law, which means insist for a formal pleading to be filed by both sides, then frame issues for determination, record evidence of the parties to prove the facts asserted by the concerned party and only thereafter, to enter upon determination and render decision thereon by recording reasons for such decision, the Court observed.
50. Impart Gender Sensitization Training To Judges; Include Such Courses In LLB & AIBE Syllabus: Supreme Court
[Case: Aparna Bhat v. State of Madhya Pradesh; Citation: LL 2021 SC 168]
A bench comprising Justices AM Khanwilkar and S. Ravindra Bhat suggested that gender sensitization training should be imparted to Judges and public prosecutors. In doing so, the bench also observed that each High Court should formulate a module on judicial sensitivity to sexual offences, to be tested in the Judicial Services Examination. It also directed the Bar Council of India to take steps to include such courses as part of LLB and AIBE syllabus.
"The National Judicial Academy is hereby requested to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges' continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. The syllabi and content of such courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably within three months," the bench said.
51. Factors Which May Not Be Relevant To Determine The Guilt Of Accused Can Be Considered At The Stage Of Sentencing: Supreme Court
[Case: K.Prakash v. State of Karnataka; Citation: LL 2021 SC 169]
A bench comprising Justices Ashok Bhushan and R. Subhash Reddy observed that factors which may not be relevant to determine the guilt of the accused can be considered at the stage of sentencing.
In this case, the accused were convicted under Sections 344 and 366 of the Indian Penal Code for allegedly conspiring with the other accused to kidnap a minor girl. They were sentenced to undergo Simple Imprisonment for one year for offence under Section 344, IPC and a fine of Rs.2000/- and S.I. for two years for the offence under Section 366, IPC and a fine of Rs.5000/-As the Karnataka High Court dismissed their appeals, they approached the Apex Court.
"Many factors which may not be relevant to determine the guilt, must be seen with a human approach, at the stage of sentencing. While imposing the sentence, all relevant factors are to be considered, keeping in mind the facts and circumstances of each case", the bench said.
52. SC Overrules 'NV International' Verdict Which Held Delay Beyond 120 Days For Arbitration Appeal Under Section 37 Can't Be Condoned
[Case: Government of Maharashtra v. Borse Brothers Engineers and Contractors Pvt Ltd.; Citation: LL 2021 SC 170]
A two-judge bench comprising Justices RF Nariman and S Ravindra Bhat overruled its 2019 verdict in the case M/s NV International vs State of Assam which had strictly held that a delay of more than 120 days in filing of appeals under Section 37 of the Arbitration and Conciliation Act 1996 cannot be condoned.
The Top Court has now held that delay beyond 90, 60 or 30 days for filing appeals under Section 37, depending on the forum, can be condoned. But the Court added a rider that such condonation of delay should be an exception and not the norm, having regard to the objective of the Arbitration Act for expeditious settlement of claims.
Also Read: Commercial Courts Act Does Not Exclude Application Of Section 5 Limitation Act: Supreme Court
53. Criminal Proceedings Are Not For Realization Of Disputed Dues, Reiterates Supreme Court
[Case: Manoj Kumar Sood v. State Of Jharkhand; Citation: LL 2021 SC 171
A bench comprising Justices Indira Banerjee and Krishna Murari reiterated that criminal proceedings are not for realization of disputed dues. A Criminal Court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial, the bench observed.
The bench also referred to Shyam Singh vs. State through CBI reported in (2006) 9 SCC 169, in which it was held that it is open to a Court to grant or refuse bail but to say that offence has been committed even at the stage of granting bail and to direct repayment of any amount is both onerous and unwarranted.
54. Delay In Raising Juvenility Claim Is No Ground For Rejection Of Such A Claim: Supreme Court
[Case: Ram Chandra v. State of Uttar Pradesh; Citation: LL 2021 SC 172]
A bench comprising Justices Indira Banerjee and Krishna Murari observed that the delay in raising the claim of juvenility is no ground for rejection of such a claim. The court was considering an application filed by one Isha Charan who has been convicted along with others under Section 302 of the Indian Penal Code and sentenced with imprisonment for life in relation to an incident which took place on 30-11-1982.
"The plea of juvenility had possibly not been taken before the Trial Court as the trial was concluded and the applicant Isha Charan was convicted before the Juvenile Justice(Care and Protection of Children) Act, 2000 was enacted. However, Section 2(k) of the Juvenile Justice (Care and Protection of Children) Act, 2000, defines a "juvenile" or "child" as a person who has not completed eighteen years of age. A person who was a juvenile at the time of commission of offence is entitled to the protection. The claim of juvenility may be raised at any stage, even after the final disposal of the case as held by this Court in Abuzar Hossain @ Ghulam Hossain vs. State of West Bengal reported in (2012) 10 SCC 489. The delay in raising the claim of juvenility is no ground for rejection of such a claim. Similar view has been taken in numerous subsequent cases of this Court," the court said.
55. Supreme Court Nullifies Kerala High Court Direction That Final Report Under Section 173(2) CrPC Should Be Filed Even For Removal Of Accused
[Case: State of Kerala v. Anil Kumar & Ors.; Citation: LL 2021 SC 173]
A bench comprising Justices Mohan Shantanagoudar and Vineet Saran has held that the general directions issued by the Kerala High Court regarding the deletion of parties from the array of accused in the final report should not be given effect to.
The bench observed that the directions will have no general application and will apply only to the facts of the particular case. The Court held so while disposing of a special leave petition filed by the State of Kerala against the general directions issued by a single bench of Justice P Somarajan of the Kerala High Court.
The High Court had "deprecated" the practice of police filing casual reports before the Magistrate to remove or delete parties from the array of accused. The High Court had also observed that it was possible to file a 'refer report' under Section 173 of the Code of Criminal Procedure, and held that such reports should be filed even with respect to persons who have been dropped as accused in the case, along with the necessary documents and statements as per Section 173(5). It further directed that notice should be given to the informant regarding the removal or deletion of accused.
56. Supreme Court Deprecates Practice Of Passing Adverse Remarks Against Judicial Officers By HC In Judgments
[Case: KG Shanti v. United India Insurance Co. Ltd.; Citation: LL 2021 SC 174]
A bench comprising Justices Sanjay Kishan Kaul and R. Subhash Reddy deprecated the practice of making adverse remarks by High Courts against judicial officers. A judicial officer who presided Motor Accidents Claims Tribunal had approached the Apex Court against certain observations made personally against her by the High Court of Karnataka. Adverse remarks were made in the judgment in appeal against an order passed by the MACT Judge.
"We are in agreement with learned counsel for the appellant that the appellant cannot be condemned unheard. We must notice at the threshold that the language used is extremely strong and the Court should be circumspect in using such language while penning down its order qua judicial officers. We really cannot appreciate the use of this language, whatever may have been the conduct of the appellant," the Court observed.
57. Supreme Court Bars Charging Compound Interest Or Penal Interest On Any Borrower During Loan Moratorium; Refuses Moratorium Extension
[Case: Small Scale Industrial Manufactures Association(Regd) v. Union of India; Citation: LL 2021 SC 175]
A Bench of Justices Ashok Bhushan, R Subhash Reddy and MR Shah directed that there should be no charging of compound interest, interest on interest or penal interest on the instalments which were due during the loan moratorium period from March 1 to August 31 last year on any borrower, irrespective of the loan amount. If such interest has already been collected, it should be either refunded to the borrower or adjusted towards the next instalments.
It observed that there is no rationale in the Centre's policy to limit the benefit of waiver of compound interest only to certain loan categories less than Rs Two Crores. Last year, the Centre had taken a decision to allow waiver of interest on interest in eight specified categories for loans up to Rupees 2 crores.
The Court observed that there is no justification shown to restrict the relief of not charging interest on interest with respect to the loans up to Rs. 2 crores only and that too restricted to the aforesaid categories.
Also Read: Compound Interest In Nature Of Penal Interest; No Justification For Charging It Once RBI Has Allowed Loan Moratorium : SC
Also Read: Functions Of Ministries Don't Get Transferred To NDMA During National Disaster: Supreme Court
58. Telephonic Message Which Does Not Clearly Specify The Offence, Cannot Be Treated As An FIR: Supreme Court
[Case: Netaji Achyut Shinde (Patil) v. State Of Maharashtra; Citation: LL 2021 SC 176]
A bench comprising Justices L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat observed that a telephonic message which does not clearly specify the offence, cannot be treated as an FIR.
In this case, one of the contentions raised by the appellant (a murder accused) was that the initial information [at 5.45 P.M. on the day of the incident] talked of an attack by one motorcycle ridden by two persons. However, when the FIR was actually allegedly recorded, this version disappeared and an improvement, which had involved other accused in order that they be implicated, was registered, they contended. According to him, it is the first intimation of the crime which constitutes the FIR and that the credibility of an "official" or formal FIR shown to have been registered later, is suspect as it affords considerable leeway to the police to cook up fictions and falsely implicate innocent persons.
The Court however observed, "A cryptic phone call without complete information or containing part-information about the commission of a cognizable offence cannot always be treated as an FIR. This proposition has been accepted by this Court in T.T. Antony v. State of Kerala (2001) 6 SCC 181 and Damodar v. State of Rajasthan (2004) 12 SCC 336."
59. Section 14 Limitation Act Applies To Application Under Section 7 IBC : Supreme Court
[Case: Sesh Nath Singh v. Baidyabati Sheoraphuli Co-operative Bank Ltd.; Citation: LL 2021 SC 177]
A bench comprising Justices Indira Banerjee and Hemant Gupta held that in an application under Section 7 of the Insolvency and Bankruptcy Code, the applicant can claim the benefit of Section 14 of the Limitation Act, in respect of proceedings under the SARFAESI Act. Section 14 of the Limitation Act 1963 allows for exclusion from the limitation period the time spent litigating before wrong forum.
It held that Section 14 applies to an application under Section 7 of the IBC and that there is no rule that the exclusion of time under Section 14 is available, only after the proceedings before the wrong forum terminate. The bench also held that SAFAESI proceedings are 'civil proceedings' for the purposes of Section 14 of the Limitation Act.
Also Read: Court/Tribunal Can Condone Delay Under Section 5 Limitation Act Even In The Absence Of A Formal Application: Supreme Court
60. Adjudicating Authority Cannot Substitute Any Commercial Term Of Resolution Plan Approved By Committee Of Creditors: Supreme Court
[Case: Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd.; Citation: LL 2021 SC 178]
The Supreme Court observed that adjudicating authority cannot substitute any commercial term of the resolution plan approved by Committee of Creditors. If, within its limited jurisdiction, the Adjudicating Authority finds any shortcoming in the resolution plan vis-à-vis the specified parameters, it would only send the resolution plan back to the Committee of Creditors, for re-submission, the bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna said.
The court observed thus while disposing a batch of cases relating to the resolution plan in the corporate insolvency resolution process under the Insolvency and Bankruptcy Code, concerning the corporate debtor, Jaypee Infratech Limited. The Adjudicating Authority (NCLT), in this case, had approved the resolution plan with some modifications.
61. Prevention Of Corruption Act- An Enquiry At Pre-FIR Stage Is Not Only Permissible But Desirable: Supreme Court
[Case: Charansingh v. State of Maharashtra; Citation: LL 2021 SC 179]
A bench Justices DY Chandrachud and MR Shah observed that it is permissible to hold discrete/open enquiry, at pre FIR Registration stage in corruption cases. Referring to Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1, the bench observed thus:
"An enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged. However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion…"
Also Read: Statement Made During Enquiry At Pre FIR Stage Neither A Confession Nor A Statement U/s 160 CrPC: Supreme Court
62. Potentiality Of Acquired Land Has To Be Taken Into Consideration To Determine Market Value: Supreme Court
[Case: UP Awas Evam Vikash Parishad v. Asha Ram (D) Thr. Lrs., Citation: LL 2021 SC 180]
The Supreme Court observed that potentiality of the acquired land is one of the primary factors to be taken into consideration to determine the market value of the land. The question whether a land has potential value or not primarily depends upon its condition, situation, use to which it is put or its reasonable capability of being put and also its proximity to residential, commercial or industrial areas/institutions, the bench comprising Justices UU Lalit, Hemant Gupta and S. Ravindra Bhat observed while allowing the appeals filed by Uttar Pradesh Awas Evam Vikas Parishad against enhancement of compensation by the Allahabad High Court to land owners of the acquired lands in some villages in the State.
The court said that the methods of valuation to be adopted to ascertain the market value of land on the date of the notification under Section 4(1) of the Land Acquisition Act are: (i) opinion of experts, (ii) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages; and (iii) a number of years' purchase of the actual or immediately prospective profits of the lands acquired. The acid test which the court should always adopt in determining the market value in matters of compulsory acquisition is to eschew feats of imagination and sit in the armchair of a prudent willing purchaser, the bench observed.
63. 'Structures Of Our Society Created By Males For Males': Supreme Court Holds Army's Evaluation Criteria To Grant Permanent Commission For Women Officers Arbitrary
[Case: Lt. Col Nitisha & Ors. v. Union of India & Ors; Citation: LL 2021 SC 181]
A Division Bench comprising of Justice DY Chandrachud and Justice MR Shah declared that the evaluation criteria adopted by the Indian Army to consider the grant of permanent commission for women officers to be "arbitrary and irrational". The Court directed the Army to reconsider the pleas of women Short Service Commission officers for grant of PC within two months in accordance with the fresh directions issued by the Court.
The top court held that the evaluation criteria adopted by the Army to benchmark the women officers with the lowest credentials of their male counter-parts and to freeze their ACR evaluation at the 5th or 10th years of their services to be "arbitrary and irrational", causing women officers "systemic discrimination".
"We must recognize here that the structures of our society have been created by males and for males. As a result, certain structures that may seem to be the "norm" and may appear to be harmless, are a reflection of the insidious patriarchal system.At the time of Independence, our Constitution sought to achieve a transformation in our society by envisaging equal opportunity in public employment and gender equality. Since then, we have continuously endeavored to achieve the guarantee of equality enshrined in our Constitution. A facially equal application of laws to unequal parties is a farce, when the law is structured to cater to a male standpoint....Superficial face of Equality does not stand true to the principles enshrined in the Constitution", the Court observed in the 137-page judgment.
Also Read: 'Not Enough To Proudly Say Women Are Allowed To Serve Army When Their Service Conditions Tell A Different Story' : Supreme Court In Permanent Commission Case
Also Read: Permanent Commission For Women Army Officers- Indirect Discrimination Even Without Discriminatory Intent Must Be Prohibited: Supreme Court
64. "Call For Justice Not Hate Speech": Supreme Court Quashes FIR Against Journalist Patricia Mukhim
[Case: Patricia Mukhim v. State of Meghalaya & Ors.; Citation: LL 2021 SC 182]
A bench comprising Justices L. Nageswara and S. Ravindra Bhat quashed a FIR registered against Shillong Times Editor Patricia Mukhim over a Facebook post on violence against non-tribal people in Meghalaya. The Court noted that the Facebook post was directed against the apathy shown by the Chief Minister of Meghalaya, the Director General of Police and the Dorbar Shnong of the area in not taking any action against the culprits who attacked the non-tribals youngsters.
The Court allowed the appeal filed by Mukhim challenging the Meghalaya High Court order which had dismissed her plea to quash the FIR.
"India is a plural and multicultural society. The promise of liberty, enunciated in the Preamble, manifests itself in various provisions which outline each citizen's rights; they include the right to free speech, to travel freely and settle (subject to such reasonable restrictions that may be validly enacted) throughout the length and breadth of India. At times, when in the legitimate exercise of such a right, individuals travel, settle down or carry on a vocation in a place where they find conditions conducive, there may be resentments, especially if such citizens prosper, leading to hostility or possibly violence. In such instances, if the victims voice their discontent, and speak out, especially if the state authorities turn a blind eye, or drag their feet, such voicing of discontent is really a cry for anguish, for justice denied – or delayed. This is exactly what appears to have happened in this case," it held.
Also Read: Free Speech Of Citizens Cannot Be Stifled By Implicating Them In Criminal Cases: Supreme Court
65. Cull Out Information From Bond Purchaser & Political Party; Do 'Match The Following': SC Says Electoral Bond Anonymity Can Be Pierced
[Case: Association for Democratic Reforms v. Union of India & Ors.; Citation: LL 2021 SC 183]
It is not as though the operations under the Electoral Bond Scheme are behind iron curtains incapable of being pierced, a Bench led by CJI SA Bobde remarked while it refused to stay the release of the fresh set of electoral bonds from April 1 for the assembly polls in West Bengal, Kerala, Tamil Nadu, Assam and Puducherry.
The bench also comprising Justices AS Bopanna and V. Ramasubramanian observed that, as the Scheme mandates political parties to file audited statement of accounts and also since the Companies Act requires financial statements of registered companies to be filed with the Registrar of Companies, the purchase as well as encashment of the bonds, happening only through banking channels, is always reflected in documents that eventually come to the public domain.
It observed that the financial statements of companies registered under the Companies Act, 2013 which are filed with the Registrar of Companies, are accessible online on the website of the Ministry of Corporate Affairs for anyone.
66. Supreme Court Allows Tata Sons Appeal Against NCLAT Order To Reinstate Cyrus Mistry As Chairman
[Case: Tata Sons Ltd v. Cyrus Mistry & Ors; Citation: LL 2021 SC 184]
In a big win for Tata Sons Ltd, the Supreme Court bench headed by CJI SA Bobde allowed its appeal against the order of the National Company Law Tribunal, which had ordered to reinstate the ousted Chairman Cyrus Mistry.
The Court held that the actions of Tata Sons board against Mistry did not amount to oppression of minority shareholders or mismanagement. The bench also said that it was open for Tatas and Mistry to work out their separation terms.
On December 18, 2019, The National Company Law Appellate Tribunal restored Cyrus Mistry as the Executive Chairman of Tata Group. Allowing Mistry's appeal, the Appellate Tribunal had set aside the judgment of Mumbai bench of National Company Law Tribunal (NCLT) that had upheld the appointment of N Chandrasekharan as Chairman in his place. The said NCLAT order was stayed by the Apex Court in January 2020 whereas the judgment was reserved on 17th December 2020.
Also Read: Company Tribunal Not A Labour Court Or Administrative Tribunal To Focus Entirely On Removal Of Director : Supreme Court In Tata-Mistry Case
67. State Govt A 'Party Interested' Under Section 406 CrPC; Entitled To Seek Transfer Of Case From Another State: Supreme Court
[Case: State of UP v. Jail Superintendent (Ropar) & Ors; Citation: LL 2021 SC 185]
A Bench headed by Justice Ashok Bhushan allowed the appeal filed by the Uttar Pradesh Government's plea seeking transfer of BSP MLA Mukhtar Ansari from Ropar Jail in Punjab to Uttar Pradesh's Ghazipur Jail.
In allowing Uttar Pradesh Government's appeal, the Supreme Court, while not delving into whether the petition was maintainable under Article 32,held that a State as "party interested" under Section 406 of Code of Criminal Procedure, 1973.
Observing that in a criminal administrative system, the State was a prosecuting agency, working for and on behalf of the people of the State, it could be deemed to be a "party interested" as the terms were of a "wide import and, therefore, have to be interpreted by giving a wider meaning".
"The words such as 'aggrieved party', 'party to the proceedings' and 'party interested' are used in various Statutes. If the words used are to the effect 'party to the proceedings' or 'party to a case', it can be given a restricted meaning'. In such cases, the intention of the legislature is clear to give restricted meaning. But, at the same time, the words used as 'party interested', which are not defined under the Code of Criminal Procedure, have to be given a wider meaning" the Court observed.
Also Read: Supreme Court Allows UP's Plea To Transfer Mukhtar Ansari From Punjab Jail
68. Insolvency Process Maintainable Against Corporate Guarantor Even If Principal Borrower Is Not A 'Corporate Person': Supreme Court
[Case: Laxmi Pat Surana v. Union Bank Of India; Citation: LL 2021 SC 186]
A bench comprising Justices AM Khanwilkar, BR Gavai and Krishna Murari held that the principal borrower need not be a "corporate person" for insolvency process to be initiated against a company which stood as its guarantor.
"Corporate Insolvency Resolution Process under Section 7 of the Insolvency and Bankruptcy Code, 2016 can be initiated by a financial creditor against a corporate person in respect of guarantee to the loan amount secured by person not being a corporate person, in case of default in payment of such a debt", the Court held.
The bench observed that the principal borrower may or may not be a corporate person, but if a corporate person extends guarantee for the loan transaction concerning a principal borrower not being a corporate person, it would still be covered within the meaning of expression "corporate debtor" in Section 3(8) of the Code.
"For, the obligation of the guarantor is coextensive and coterminous with that of the principal borrower to defray the debt, as predicated in Section 128 of the Contract Act," the Court observed.
69. Arbitration Reference Not Maintainable If Filed After Admission Of Insolvency Resolution Petition U/s 7 IBC: Supreme Court
[Case: Indus Biotech Private Limited v. Kotak India Venture (Offshore) Fund; Citation: LL 2021 SC 187]
Supreme Court bench headed by CJI SA Bobde observed that in any proceeding which is pending before the Adjudicating Authority under Section 7 of Insolvency and Bankruptcy Code, if such petition is admitted upon the Adjudicating Authority recording the satisfaction with regard to the default and the debt being due from the corporate debtor, any application seeking reference to arbitration under Section 8 of the Arbitration and Conciliation Act made thereafter will not be maintainable.
"In a situation where the petition under Section 7 of IB Code is yet to be admitted and, in such proceedings, if an application under Section 8 of the Act, 1996 is filed, the Adjudicating Authority is duty bound to first decide the application under Section 7 of the IB Code by recording a satisfaction with regard to there being default or not, even if the application under Section 8 of Act, 1996 is kept along for consideration. In such event, the natural consequence of the consideration made therein on Section 7 of IB Code application would befall on the application under Section 8 of the Act, 1996," the bench observed.
In this case, the appellant filed a petition under Section 7 of IB Code before the NCLT seeking appointment of Resolution Professional. In the said proceedings, the respondent, filed a Miscellaneous Application under Section 8 of the Arbitration Act seeking a direction to refer the parties to arbitration. NCLT allowed the said application and also dismissed the petition under Section 7 IBC observing that that there is no default.
70. Second Appeal: Judgment Should Not Be Interfered With By High Court Unless There Is A Substantial Question Of Law, Reiterates Supreme Court
[Case: Mallanaguoda v. Ninganagouda; Citation: LL 2021 SC 188]
A bench comprising Justices L. Nageswara Rao and S. Ravindra Bhat reiterated that, the judgment of the First Appellate Court should not be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure, unless there is a substantial question of law. The First Appellate Court is the final Court on facts.
71. Minor Contradictions Can Not Be A Ground To Discredit Witnesses' Testimony, Reiterates Supreme Court
[Case: Rajendra @ Rajappa v. State of Karnataka; Citation: LL 2021 SC 189]
A bench comprising Justices Sanjay Kishan Kaul and R. Subhash Reddy reiterated that only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses. It observed thus while dismissing the appeal filed by murder accused against the Judgment of Karnataka High Court which had reversed their acquittal by the Trial Court.
The bench, referring to the evidence on record, observed that if the depositions of prosecution witnesses are considered along with the documentary evidence on record and medical evidence, it is crystal clear that their evidence is natural, trustworthy and acceptable. The trial court has disbelieved their testimony by referring to some minor contradictions. The court noted that, the witnesses are rustic villagers and incident happened when they were returning to their house after attending the coolie work.
72. 'Comprehensive Traffic Management Plan For Kaushambi, Ghaziabad Needed': Supreme Court Constitutes Committee
[Case: VK Mittal & Anr v. Union of Delhi & Ors.; Citation: LL 2021 SC 190]
A bench comprising Justices DY Chandrachud, MR Shah and Sanjiv Khanna constituted a committee to evolve a "comprehensive traffic management plan" for Kaushambi, Ghaziabad. It passed a direction in this regard in a writ petition filed by the President of the Kaushambi Apartments Resident Welfare Association under Article 32 of the Constitution, highlighting a magnitude of problems faced by Kaushambi, Ghaziabad residents.
The petition highlighted several issues, ranging from haphazard traffic management to environmental pollution and unrestricted dumping of municipal solid waste. As a result, it has been submitted that the residents of the area are suffering from serious respiratory issues. There is an added concern over contaminated ground water.
The bench decided to take up the problem of traffic management at the first instance. It observed that it cannot be seen as a mere law enforcement problem and a comprehensive traffic management plan was needed.
73. Purchasers Of Non-GST Goods Entitled To 'Form C' Under CST For Concessional Rate Even After GST Act: Supreme Court
[Case: The Commissioner of Commercial Taxes & Anr v. Ramco Cements Ltd.; Citation: LL 2021 SC 191
A bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and Krishna Murari has upheld the views taken by various High Courts that the Goods and Services Tax Act does not affect the right of purchasers of goods not covered by the GST to get Form 'C' under the Central Sales Tax Act to avail concessional tax rate.
The bench while dismissing the special leave petition of the tax department, noted that the Punjab and Haryana High Court had taken a similar view in the 2018 decision in the case Caparo Power Ltd vs State Of Haryana And Ors. The Special Leave Petition against that judgment was dismissed by the Supreme Court on August 13, 2018( SLP(c) 20572/2018).
The top court noted that nine High Courts across the country have taken the same view. "Considering the consistent view of nine High Courts, including dismissal of special leave petitions by different Bench of this Court, and being satisfied about the exposition on the matters in issue by the High Court of Madras vide impugned judgment and order being a possible view, we decline to interfere in these special leave petitions", the bench observed.
74. Seriousness Of Charge Relevant Factor: Supreme Court Sets Aside Bail Granted To Man Accused Of Murdering Lady Doctor
[Case: State of Kerala v. Mahesh; Citation: LL 2021 SC 192]
A bench comprising Justices Indira Banerjee and Krishna Murari set aside the Kerala High Court order which granting bail to a man accused murder of a lady doctor and observed that seriousness of the charge is one of the relevant considerations while considering bail applications.
According to the prosecution case, the accused, Mahesh on 28th September 2020 at about 3.30 p.m., stabbed a doctor who was about 30 years of age, with a knife, inside a multispecialty dental clinic, run by her. She was stabbed with a knife on the right side of the stomach, in the presence of her father, at the dental clinic. Though the Session's Court dismissed the bail application, the High Court allowed it observing that indefinite incarceration was not necessary.
The bench, in appeal filed by the State, observed that the power to grant bail under Section 439 of the Cr.P.C is discretionary, such discretion has to be exercised judiciously. Moreover, it was observed that seriousness of the charge is undoubtedly one of the relevant considerations while considering bail applications.