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Criminal Minor Acts - Supreme Court...

Criminal Minor Acts - Supreme Court Half Yearly Digest 2023

LIVELAW NEWS NETWORK

22 Dec 2023 6:19 AM GMT

Narcotic Drugs and Psychotropic Substances Act, 1985

Narcotic Drugs and Psychotropic Substances Act, 1985 - Definition of "ganja" under the Act does not include ganja seeds - Ganja seeds not a banned contraband. Hasubhai Kamabhai Thakor v. State of Gujarat, 2023 LiveLaw (SC) 354

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 – Effect of delay in trial – Grant of bail on ground of undue delay in trial not fettered by Section 37 – Imperative of Section 436A of Code of Criminal Procedure Act – Requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods – Applicable to offences under the NDPS Act – Held, special conditions as enacted under Section 37 can only be considered within constitutional parameters when the court is reasonably satisfied on a prima facie look at the material on record that the accused is not guilty – A plain and literal would effectively exclude grant of bail altogether - Further held, appellant deserves to be enlarged on bail – Appeal allowed. Mohd. Muslim v. State (NCT of Delhi), 2023 LiveLaw (SC) 260 : AIR 2023 SC 1648 : 2023 INSC 311

Negotiable Instruments Act 1881

Negotiable Instruments Act 1881 - Section 138, 147 - The nature of offence under section 138 of the N.I Act is primarily related to a civil wrong and is a compoundable offence. (Para 10) B.V. Seshaiah v. State of Telangana, 2023 LiveLaw (SC) 75 : AIR 2023 SC 717 : (2023) 2 SCR 293 : 2023 INSC 93

Negotiable Instruments Act 1881; Section 138 - Approval of resolution plan of corporate debtor will not extinguish the liability of erstwhile director for dishonour of cheque. (Para 17, 18 & 47, 52) Ajay Kumar Radheyshyam Goenka v. Tourism Finance Corporation of India Ltd., 2023 LiveLaw (SC) 195 : 2023 INSC 232

Negotiable Instruments Act 1881; Section 138 - Where the proceedings under Section 138 of the NI Act had already commenced and during the pendency the plan is approved or the company gets dissolved, the directors and the other accused cannot escape from their liability by citing its dissolution. (Para 52) Ajay Kumar Radheyshyam Goenka v. Tourism Finance Corporation of India Ltd., 2023 LiveLaw (SC) 195 : 2023 INSC 232

Negotiable Instruments Act, 1881; Section 138 - by operation of the provisions of the IBC, the criminal prosecution initiated against the natural persons under Section 138 read with 141 of the NI Act read with Section 200 of the CrPC would not stand terminated. (Para 47) Ajay Kumar Radheyshyam Goenka v. Tourism Finance Corporation of India Ltd., 2023 LiveLaw (SC) 195 : 2023 INSC 232

Negotiable Instruments Act, 1881; Section 138 - Conviction cannot be confirmed overriding the agreement between the parties to compound the offence- Terms and conditions of the settlement entered into by the parties binds them to settle the dispute amicably, or through an arbitration as has been stated in clause 8 of the Memorandum of Understanding. In such a circumstance, the Appellants cannot be convicted on the basis of the orders passed by the courts below, as the settlement is nothing but a compounding of the offence- This is a very clear case of the parties entering into an agreement and compounding the offence to save themselves from the process of litigation. When such a step has been taken by the parties, and the law very clearly allows them to do the same, the High Court then cannot override such compounding and impose its will. (Para 8, 9, 11) B.V. Seshaiah v. State of Telangana, 2023 LiveLaw (SC) 75 : AIR 2023 SC 717 : (2023) 2 SCR 293 : 2023 INSC 93

Negotiable Instruments Act, 1881; Section 138 - The offence under Section 138 is complete upon dishonour of the cheque but prosecution in relation to such offence is postponed, by virtue of the provisos therein, till the failure of the drawer of the cheque to make the payment within 15 days of receiving the demand notice. (Para 5) Yogesh Upadhyay v. Atlanta Ltd., 2023 LiveLaw (SC) 125 : AIR 2023 SC 1151 : (2023) 2 SCR 511 : 2023 INSC 150

Negotiable Instruments Act, 1881; Section 138, 142(2)(a) - Section 142(2)(a) vests jurisdiction for initiating proceedings for an offence under Section 138 in the Court where the cheque is delivered for collection, i.e., through an account in the branch of the bank where the payee or holder in due course maintains an account. (Para 12) Yogesh Upadhyay v. Atlanta Ltd., 2023 LiveLaw (SC) 125 : AIR 2023 SC 1151 : (2023) 2 SCR 511 : 2023 INSC 150

Negotiable Instruments Act, 1881; Section 139 - The standard of proof for rebutting the presumption is that of preponderance of probabilities - once the execution of cheque is admitted, Section 139 of the N.I. Act mandates a presumption that the cheque was for the discharge of any debt or other liability - The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities - To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence - Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. Referred to Baslingappa v. Mudibasappa (2019) 5 SCC 418 (Para 12-20) Rajaram Sriramulu Naidu v. Maruthachalam, 2023 LiveLaw (SC) 46 : AIR 2023 SC 471 : (2023) 1 SCR 809 : 2023 INSC 51

Prevention of Corruption Act, 1988

Prevention of Corruption Act, 1988; Section 13(1)(e) - Second proviso is in the nature of additional safeguard for the public servant who are accused of the offence punishable under Section 13(1)(e) of the 1988 Act against an investigation by a police officer without the knowledge and consent of superior police officer not below the rank of Superintendent of Police. A superior police officer of the rank of Superintendent of Police or any officer higher in rank is required to pass an order before an investigation, if any, for such offence is commenced. It is needless to point-out that, before directing such investigation, the Superintendent of Police or an officer superior to him is required to apply his mind to the information and come to an opinion that the investigation on such allegations is necessary. (Para 88) State v. Hemendhra Reddy, 2023 LiveLaw (SC) 365 : 2023 INSC 460

Prevention of Corruption Act, 1988; Section 7 - To attract Section 7 of the PC Act, the demand for gratification has to be proved by the prosecution beyond a reasonable doubt. The word used in Section 7, as it existed before 26th July 2018, is 'gratification'. There has to be a demand for gratification. It is not a simple demand for money, but it has to be a demand for gratification. If the factum of demand of gratification and acceptance thereof is proved, then the presumption under Section 20 can be invoked, and the Court can presume that the demand must be as a motive or reward for doing any official act. This presumption can be rebutted by the accused. (Para 11) Soundarajan v. State, 2023 LiveLaw (SC) 314 : AIR 2023 SC 2136 : 2023 INSC 377

Prevention of Corruption Act, 1988 - Demand and recovery both must be proved to sustain conviction under the Act - Conviction set aside as demand was not proved. Jagtar Singh v. State of Punjab, 2023 LiveLaw (SC) 232 : AIR 2023 SC 1567 : 2023 INSC 279

Prevention of Corruption Act, 1988 - In the present case, there are no circumstances brought on record which will prove the demand for gratification. Therefore, the ingredients of the offence under Section 7 of the PC Act were not established and consequently, the offence under Section 13(1)(d) will not be attracted. Neeraj Dutta v. State (GNCTD), 2023 LiveLaw (SC) 211 : 2023 Cri. LJ 1856 : (2023) 2 SCR 997 : 2023 INSC 245

Prevention of Corruption Act, 1988 - the complainant did not produce a copy of the application made by him for providing electricity meter - the complainant did not clearly tell that he had given such application. In absence of proof of making such application, the prosecution's case regarding demand of bribe for installing new electricity meter becomes doubtful. (Para 18) Neeraj Dutta v. State (GNCTD), 2023 LiveLaw (SC) 211 : 2023 Cri. LJ 1856 : (2023) 2 SCR 997 : 2023 INSC 245

Prevention of Corruption Act, 1988; Section 7 - Demand of Gratification - When we consider the issue of proof of demand within the meaning of Section 7, it cannot be a simpliciter demand for money but it has to be a demand of gratification other than legal remuneration - Every demand made for payment of money is not a demand for gratification. It has to be something more than mere demand for money. (Para 16, 17) Neeraj Dutta v. State (GNCTD), 2023 LiveLaw (SC) 211 : 2023 Cri. LJ 1856 : (2023) 2 SCR 997 : 2023 INSC 245

Prevention of Corruption Act, 1988; Sections 20 and 7 - The presumption under Section 20 can be invoked only when the two basic facts required to be proved under Section 7, are proved. The said two basic facts are 'demand' and 'acceptance' of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification shall be presumed to be for a motive or reward, as contemplated by Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption. (Para 11) Neeraj Dutta v. State (GNCTD), 2023 LiveLaw (SC) 211 : 2023 Cri. LJ 1856 : 2023 INSC 245 : (2023) 2 SCR 997

Prevention of Corruption Act, 1988; Sections 7 and 13 – In absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence – Also, allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt - the Constitution Bench ruling in Neeraj Dutta v. State, 2022 LiveLaw (SC) 1029 that direct evidence of demand or acceptance of bribe is not necessary for a conviction under the Act does not dilute the requirement of proof beyond reasonable doubt. (Para 14) Neeraj Dutta v. State (GNCTD), 2023 LiveLaw (SC) 211 : 2023 Cri. LJ 1856 : 2023 INSC 245 : (2023) 2 SCR 997

Prevention of Corruption Act, 1988; Sections 7 and 13 - The Constitution Bench was dealing with the issue of the modes by which the demand can be proved and laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. (Para 14) Neeraj Dutta v. State (GNCTD), 2023 LiveLaw (SC) 211 : 2023 Cri. LJ 1856 : (2023) 2 SCR 997: 2023 INSC 245

Prevention of Corruption Act, 1988 - It is desirable that High Courts maintain a "hands-off" approach and not quash FIRs relating to corruption cases at investigation stage-This is because, it is difficult to form an opinion conclusively at the stage of reading a first information report that the public servant is either in or not in possession of property disproportionate to the known sources of his/her income. It would all depend on what is ultimately unearthed after the investigation is complete -The considerations that could apply to quashing of first information reports pertaining to offences punishable under general penal statutes ex proprio vigore may not be applicable to a P.C. Act offence. (Para 74) State of Chattisgarh v. Aman Kumar Singh, 2023 LiveLaw (SC) 158 : AIR 2023 SC 1441 : 2023 INSC 189

Prevention of Corruption Act, 1988 - Zero Tolerance to Corruption - Though it is the preambular promise of the Constitution to secure social justice to the people of India by striving to achieve equal distribution of wealth, it is yet a distant dream. If not the main, one of the more prominent hurdles for achieving progress in this field is undoubtedly 'corruption'. Corruption is a malaise, the presence of which is all pervading in every walk of life. (Para 49) State of Chattisgarh v. Aman Kumar Singh, 2023 LiveLaw (SC) 158 : AIR 2023 SC 1441 : 2023 INSC 189

Prevention of Cruelty to Animals Act, 1960

Prevention of Cruelty to Animals Act, 1960 - Jallikattu Law can't be termed arbitrary merely because bulls lack natural ability to run like horses. Animal Welfare Board of India v. Union of India, 2023 LiveLaw (SC) 447 : AIR 2023 SC 2612 : 2023 INSC 548

Prevention of Cruelty to Animals Act, 1960 - The Supreme Court has expressed its disagreement with the 2014 division bench judgment in Animal Welfare Board of India v. A. Nagaraja And Ors insofar as it held that Jallikattu is not a cultural practice in Tamil Nadu. As per the materials placed before the Court, Jallikattu is going in Tamil Nadu for at least the last one century and whether or not it as an integral part of Tamil culture could not have been decided by the Court. When the legislature has declared that Jallikattu is part of the cultural heritage of TN state, the judiciary cannot take a different view. Legislature is best suited to decide that. The preamble to the state amendment had stated that Jallikettu is a part of cultural heritage of the State. We will not disrupt the view of the legislature that it is part of the cultural heritage of the state. Animal Welfare Board of India v. Union of India, 2023 LiveLaw (SC) 447 : AIR 2023 SC 2612 : 2023 INSC 548

Prevention of Cruelty to Animals Act, 1960 - there is no precedent to show that the Constitution of India recognises fundamental rights for animals. Animal Welfare Board of India v. Union of India, 2023 LiveLaw (SC) 447 : AIR 2023 SC 2612 : 2023 INSC 548

Prevention of Money Laundering Act, 2002

Prevention of Money Laundering Act (Act 15 of 2003) – Section 3 – Registration of ECIR – Effect of delay – Information about all complaints, the nature of the complaints, and the amount of money allegedly collected towards illegal gratification had all come into the public domain – Once a piece of information relating to the acquisition of a huge amount of illegal gratification in the matter of public employment has come into the public domain, it is the duty of the ED to register an Information Report – Held, registration of ECIR does not amount to fishing expedition – Further held, argument that there is no explanation for the delay in registering the ECIR self-serving – Writ petition challenging ED investigation dismissed. Y. Balaji v. Karthik Desari, 2023 LiveLaw (SC) 440 : AIR 2023 SC 3171 : (2023) 8 SCR 1026 : 2023 INSC 542

Prevention of Money Laundering Act, 2002 - Mere fact that chargesheet has been filed for the predicate offences is not a ground to release the accused on bail in connection with the offences under the PML Act. Directorate of Enforcement v. Aditya Tripathi, 2023 LiveLaw (SC) 433 : AIR 2023 SC 2324 : 2023 INSC 531

Prevention of Money Laundering Act, 2003 – Sections 3 and 2(1)(u) – Offence of Money Laundering – Definition of proceeds of crime – In offences of corruption, criminal activity and generation of proceeds of crime go hand-in-hand – Wherever there are allegations of corruption, the acquisition of proceeds of crime itself tantamount to money laundering – Even if an intangible property is derived as a result of criminal activity relating to a scheduled offence, it becomes proceeds of crime under Section 2(1)(u) – Held, arguments that there are no foundational facts or jurisdictional facts unsustainable and as such, proceedings before Enforcement Directorate not illegal – Writ petition challenging ED investigation dismissed. Y. Balaji v. Karthik Desari, 2023 LiveLaw (SC) 440 : AIR 2023 SC 3171 : (2023) 8 SCR 1026 : 2023 INSC 542

Prevention of Money Laundering Act, 2002; Section 45 - Rigours under Section 45 are applicable to anticipatory bail applications. (Para 5) Directorate of Enforcement v. M. Gopal Reddy, 2023 LiveLaw (SC) 138 : 2023 INSC 163

Prevention of Money-laundering Act, 2002; Section 3 - The area in which the property is derived or obtained or even held or concealed, will be the area in which the offence of money laundering is committed. (Para 39-40) Rana Ayyub v. Directorate of Enforcement, 2023 LiveLaw (SC) 86 : AIR 2023 SC 875 : (2023) 4 SCC 357 : 2023 INSC 101

Prevention of Money-laundering Act, 2002; Section 44 - It is the Special Court constituted under the PMLA that would have jurisdiction to try even the scheduled offence. Even if the scheduled offence is taken cognizance of by any other Court, that Court shall commit the same, on an application by the concerned authority, to the Special Court which has taken cognizance of the offence of money-laundering. (Para 36) Rana Ayyub v. Directorate of Enforcement, 2023 LiveLaw (SC) 86 : AIR 2023 SC 875 : (2023) 4 SCC 357 : 2023 INSC 101

Prevention of Money Laundering Act (Act 15 of 2003); Sections 3 and 44 – Territorial Jurisdiction of Special PMLA Court – Place of commission of the offence of money-laundering – The involvement of a person in any one or more of certain processes or activities connected with the proceeds of crime, namely, concealment, possession, acquisition, use, projecting as untainted property, or claiming as untainted property, constitutes the offence of money-laundering – All the places where any one or more of these processes or activities take place are the places where the offence of money-laundering has been committed – Triable by the special court(s) constituted for the area(s) in which the offence of money-laundering has been committed – Held, the petition could not be entertained since the issue of territorial jurisdiction could not be decided in a writ petition, especially in the presence of a serious factual dispute about the place or places of commission of the offence – Petition dismissed. (Paras 38 to 40) Rana Ayyub v. Directorate of Enforcement, 2023 LiveLaw (SC) 86 : AIR 2023 SC 875 : (2023) 4 SCC 357 : 2023 INSC 101

Protection of Women from Domestic Violence Act, 2005

Protection of Women from Domestic Violence Act, 2005 - In a complaint filed under the Protection of women from Domestic Violence Act, 2005, it is not open to the Court to impose such onerous conditions upon the appellant, who claims to be a victim of domestic violence. What the Appellate Court and the High Court have ordered are actually in the nature of penalty for the appellant not proceeding with the trial. In the first instance, it is impermissible in law. Bhawna v. Bhay Ram, 2023 LiveLaw (SC) 148

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - The officers, who institute an FIR, based on any complaint, are duty bound to be vigilant before invoking any provision of a very stringent statute, like the SC/ST Act, which imposes serious penal consequences on the concerned accused. The officer has to be satisfied that the provisions he seeks to invoke prima facie apply to the case at hand. We clarify that our remarks, in no manner, are to dilute the applicability of special/stringent statutes, but only to remind the police not to mechanically apply the law, dehors reference to the factual position. Gulam Mustafa v. State of Karnataka, 2023 LiveLaw (SC) 421 : AIR 2023 SC 2999 : 2023 INSC 511

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989; Section 3(1)(x) - Before subjecting an accused to a trial for alleged commission of offence, it is desirable that the caste related utterances are outlined either in the FIR or, atleast, in the chargesheet. The same would enable it to ascertain if a case is made out for an offence under the SC/ST Act before taking cognisance of the matter. Ramesh Chandra Vaishya v. State of Uttar Pradesh, 2023 LiveLaw (SC) 469 : (2023) 6 SCR 643 : 2023 INSC 569

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Supreme Court refuses to interfere with HC order quashing FIR lodged by a Dalit IIT faculty member against his colleagues alleging caste-based harassment - Court favours a conciliatory approach and urges the Chairman of Board of Governor to invite the complainant and the accused for talks - Court observes allegations and counter-allegations damage the repute of a premier institution like IIT - Court impresses upon them to ensure that they work together as a team in the best interests of the institution and their students, and do not allow any unfortunate and untoward incidents to occur which might hurt the sentiments, feelings, respect and dignity of each other - Court says the continuation of criminal proceedings will be an impediment to restoration of normalcy and bringing cordiality back between the appellant and the respondents in their professional and personal capacities. Subrahmanyam Saderla v. Chandra Shekhar Upadhyay, 2023 LiveLaw (SC) 126

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989; Sections 3(1)(v) and (va) - Code of Criminal Procedure, 1973; Section 482 - Private civil dispute between the parties is converted into criminal proceedings - Initiation of the criminal proceedings therefore, is nothing but an abuse of process of law and Court - Complaint and summoning order quashed. B. Venkateswaran v. P. Bakthavatchalam, 2022 LiveLaw (SC) 14 : AIR 2023 SC 262 : 2023 INSC 18

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) - Directions - To fulfil the promise that the PoSH Act holds out to working women all over the country, it is deemed appropriate to issue the following directions : (I) The Union of India, all State Governments and Union Territories are directed to undertake a timebound exercise to verify as to whether all the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. have constituted ICCs/LCs/ICs, as the case may be and that the composition of the said Committees are strictly in terms of the provisions of the PoSH Act. (ii) It shall be ensured that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, details of the email IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, as also the relevant rules, regulations and internal policies are made readily available on the website of the concerned Authority/Functionary/Organisation/Institution/Body, as the case may be. The information furnished shall also be updated from time to time. (iii) A similar exercise shall be undertaken by all the Statutory bodies of professionals at the Apex level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes. (iv) Immediate and effective steps shall be taken by the authorities/ managements/employers to familiarize members of the ICCs/LCs/ICs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is finally concluded and the Report submitted. (v) The authorities/management/employers shall regularly conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of the ICCs/LCs/ICs and to educate women employees and women's groups about the provisions of the Act, the Rules and relevant regulations. (vi) The National Legal Services Authority (NALSA) and the State Legal Services Authorities (SLSAs) shall develop modules to conduct workshops and organize awareness programmes to sensitize authorities / managements / employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar. (vii) The National Judicial Academy and the State Judicial Academies shall include in their annual calendars, orientation programmes, seminars and workshops for capacity building of members of the ICCs/LCs/ICs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules. (viii) A copy of this judgment shall be transmitted to the Secretaries of all the Ministries, Government of India who shall ensure implementation of the directions by all the concerned Departments, Statutory Authorities, Institutions, Organisations etc. under the control of the respective Ministries. A copy of the judgment shall also be transmitted to the Chief Secretaries of all the States and Union Territories who shall ensure strict compliance of these directions by all the concerned Departments. It 2 shall be the responsibility of the Secretaries of the Ministries, Government of India and the Chief Secretaries of every State/Union Territory to ensure implementation of the directions issued. (ix) The Registry of the Supreme Court of India shall transmit a copy of this judgment to the Director, National Judicial Academy, Member Secretary, NALSA, Chairperson, Bar Council of India and the Registrar Generals of all the High Courts. The Registry shall also transmit a copy of this judgment to the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and the Engineering Council of India for implementing the directions issued. (x) Member-Secretary, NALSA is requested to transmit a copy of this judgment to the Member Secretaries of all the State Legal Services Authorities. Similarly, the Registrar Generals of the State High Courts shall transmit a copy of this judgment to the Directors of the State Judicial Academies and the Principal District Judges/District Judges of their respective States. (xi) The Chairperson, Bar Council of India and the Apex Bodies mentioned in sub-para (ix) above, shall in turn, transmit a copy of this judgment to all the State Bar Councils and the State Level Councils, as the case may be. The Union of India and all States/UTs are directed to file their affidavits within eight weeks for reporting compliances. (Para 77) Aureliano Fernandes v. State of Goa, 2023 LiveLaw (SC) 424 : AIR 2023 SC 2485 : (2023) 7 SCR 772 : 2023 INSC 527

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) - Central Civil Services (Classification, Control and Appeal) Rules, 1965; Rule 14 - Non-framing of the articles of charge – Effect of - In the instant case, though the Committee appointed by the Disciplinary Authority did not hold an inquiry strictly in terms of the step-by-step procedure laid down in Rule 14 of the CCS (CCA) Rules, nonetheless, we have seen that it did furnish copies of all the complaints, the depositions of the complainants and the relevant material to the appellant, called upon him to give his reply in defence and directed him to furnish the list of witnesses that he proposed to rely on. Records also reveal that the appellant had furnished a detailed reply in defence. He had also submitted a list of witnesses and depositions. This goes to show that he was well-acquainted with the nature of allegations levelled against him and knew what he had to state in his defence. Given the above position, non-framing of the articles of charge cannot be said to be detrimental to the interest of the appellant. (Para 70) Aureliano Fernandes v. State of Goa, 2023 LiveLaw (SC) 424 : AIR 2023 SC 2485 : (2023) 7 SCR 772 : 2023 INSC 527

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) - Inquiry Proceedings - Defects and the Procedural Lapses - In fact, the glaring defects and the procedural lapses in the inquiry proceedings took place only thereafter, in the month of May, 2009, when 12 hearings, most of them back-to-back, were conducted by the Committee at a lightning speed. On the one hand, the Committee kept on forwarding to the appellant, depositions of some more complainants received later on and those of other witnesses and called upon him to furnish his reply and on the other hand, it directed him to come prepared to cross-examine the said complainants and witnesses as also record his further deposition, all in a span of one week. Even if the medical grounds taken by the appellant seemed suspect, the Committee ought to have given him reasonable time to prepare his defence, more so when his request for being represented through a lawyer had already been declined. It was all this undue anxiety that had led to short circuiting the inquiry proceedings conducted by the Committee and damaging the very fairness of the process. (Para 71) Aureliano Fernandes v. State of Goa, 2023 LiveLaw (SC) 424 : AIR 2023 SC 2485 : (2023) 7 SCR 772 : 2023 INSC 527

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) - Inquiry Proceedings - Fairness of the Process - the appellant 3 cannot be faulted for questioning the process and its outcome. There is no doubt that matters of this nature are sensitive and have to be handled with care. The respondents had received as many as seventeen complaints from students levelling serious allegations of sexual harassment against the appellant. But that would not be a ground to give a complete go by to the procedural fairness of the inquiry required to be conducted, more so when the inquiry could lead to imposition of major penalty proceedings. When the legitimacy of the decision taken is dependent on the fairness of the process and the process adopted itself became questionable, then the decision arrived at cannot withstand judicial scrutiny and is wide open to interference. It is not without reason that it is said that a fair procedure alone can guarantee a fair outcome. In this case, the anxiety of the Committee of being fair to the victims of sexual harassment, has ended up causing them greater harm. (Para 72) Aureliano Fernandes v. State of Goa, 2023 LiveLaw (SC) 424 : AIR 2023 SC 2485 : (2023) 7 SCR 772 : 2023 INSC 527

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) - Inquiry Proceedings - Principles of Natural Justice - the proceedings conducted by the Committee with effect from the month of May, 2009, fell short of the “as far as practicable” norm prescribed in the relevant Rules. The discretion vested in the Committee for conducting the inquiry has been exercised improperly, defying the principles of natural justice. As a consequence thereof, the impugned judgment upholding the decision taken by the EC of terminating the services of the appellant, duly endorsed by the Appellate Authority cannot be sustained and is accordingly quashed and set aside with the following directions: (i) The matter is remanded back to the Complaints Committee to take up the inquiry proceeding as they stood on 5th May 2009. (ii) The Committee shall afford adequate opportunity to the appellant to defend himself. (iii) The appellant shall not seek any adjournment of the proceedings. (iv) A Report shall be submitted by the Committee to the Disciplinary Authority for appropriate orders. (v) Having regard to the long passage of time, the respondents are directed to complete the entire process within three months from the first date of hearing fixed by the Committee. (vi) The procedure to be followed by the Committee and the Disciplinary Authority shall be guided by the principles of natural justice. (vii) The Rules applied will be as were applicable at the relevant point of time. (viii)The decision taken by the Committee and the Disciplinary Authority shall be purely on merits and in accordance with law. (ix) The appellant will not be entitled to claim immediate reinstatement or back wages till the inquiry is completed and a decision is taken by the Disciplinary Authority. (Para 73) Aureliano Fernandes v. State of Goa, 2023 LiveLaw (SC) 424 : AIR 2023 SC 2485 : (2023) 7 SCR 772 : 2023 INSC 527

Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976

Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 - Object behind enacting the Act, 1976 is to provide for forfeiture of illegally acquired properties of smugglers and foreign exchange manipulators, and at the same time to ensure effective prevention of smuggling activities and foreign exchange manipulation - It is necessary to deprive persons engaged in such activities and manipulations of their ill-gotten gains. It also provides that such persons have been augmenting such gains by violations of wealth tax, income tax or other laws or by other means and have thereby been increasing their resources for operating in a clandestine manner and to nail such persons who are holding the properties acquired by them through such gains in the name of their relatives, associates and confidants. (Para 9) Platinum Theatre v. Competent Authority, 2023 LiveLaw (SC) 226 : AIR 2023 SC 1614 : 2023 INSC 273

Unlawful Activities (Prevention) Act, 1967

Unlawful Activities (Prevention) Act, 1967 - The Supreme Court set aside an order of the Bombay High Court acquitting former Delhi University professor and activist G.N. Saibaba as well as others over their alleged Maoist links and remanded the matter back to the high court to be considered afresh by a different bench. State of Maharashtra v. Mahesh Kariman Tirki, 2023 LiveLaw (SC) 438

Unlawful Activities (Prevention) Act, 1967; Section 43D(5) - Materials placed on record do not state reasonable grounds for believing that the accusations against the appellants of commission of offence under the UAPA are prime facie true - bail granted to two alleged Maoists. Yedala Subba Rao & Anr. v. Union of India, 2023 LiveLaw (SC) 317 : (2023) 6 SCC 65 : 2023 INSC 382

Unlawful Activities (Prevention) Act, 1967 - Section 10(a)(i) does not suffer from any vagueness and/or on the ground unreasonable and/or disproportionate. (Para 16.1) Arup Bhuyan v. State of Assam, 2023 LiveLaw (SC) 234 : AIR 2023 SC 1685 : 2023 INSC 292

Unlawful Activities (Prevention) Act, 1967 - the view taken by this Court in the cases of State of Kerala v. Raneef, (2011) 1 SCC 784; Arup Bhuyan v. Union of India, (2011) 3 SCC 377 and Sri Indra Das v. State of Assam, 2011 (3) SCC 380 taking the view that under Section 3(5) of Terrorists and Disruptive Activities (Prevention) Act, 1987 and Section 10(a)(i) of the Unlawful Activities (Prevention) Act, 1967 mere membership of a banned organization will not incriminate a person unless he resorts to violence or incites people to violence and does an act intended to create disorder or disturbance of public peace by resort to violence and reading down the said provisions to mean that over and 2 above the membership of a banned organization there must be an overt act and/or further criminal activities and adding the element of mens rea are held to be not a good law. (Para 18) Arup Bhuyan v. State of Assam, 2023 LiveLaw (SC) 234 : AIR 2023 SC 1685 : 2023 INSC 292

Unlawful Activities (Prevention) Act, 1967 - Upholds the Constitutionality of Section 10(a)(i) - Overrules the judgments in Arup Bhuyan v. State of Assam, Indra Das v. State of Assam and State of Kerala v. Raneef which held that mere membership of a banned association is not sufficient to constitute an offence under the Unlawful Activities (Prevention) Act 1967 or the Terrorism and Disruptive Activities (Prevention) Act, unless it is accompanied with some overt violent-Court ought not to have read down Section 10(a)(i) of the UAPA, 1967 more particularly when neither the constitutional validity of Section 10(a)(i) of the UAPA, 1967 was under challenge nor the Union of India was heard. (Para 11.5, 18) Arup Bhuyan v. State of Assam, 2023 LiveLaw (SC) 234 : AIR 2023 SC 1685 : 2023 INSC 292

Unlawful Activities (Prevention) Act, 1967 - When an association is declared unlawful by notification issued under Section 3 which has become effective of sub-section 3 of that Section, a person who is and continues to be a member of such association is liable to be punished with imprisonment for a term which may extend to two years, and shall also be liable to fine under Section 10(a)(i) of the UAPA, 1967. (Para 18) Arup Bhuyan v. State of Assam, 2023 LiveLaw (SC) 234 : AIR 2023 SC 1685 : 2023 INSC 292

Unlawful Activities (Prevention) Act, 1967; Section 10(a)(i) - Mere possibility of misuse cannot be a ground and/or relevant consideration while considering the constitutionality. (Para 16) Arup Bhuyan v. State of Assam, 2023 LiveLaw (SC) 234 : AIR 2023 SC 1685 : 2023 INSC 292

Unlawful Activities (Prevention) Act, 1967; Section 10(a)(i) - Once an organization is declared unlawful after due procedure and despite that a person who is a member of such unlawful association continues to be a member of such unlawful association then he has to face the consequences and is subjected to the penal provisions as provided under Section 10 more particularly Section 10(a)(i) of the UAPA, 1967. (Para 14.5) Arup Bhuyan v. State of Assam, 2023 LiveLaw (SC) 234 : AIR 2023 SC 1685 : 2023 INSC 292