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Supreme Court Monthly Digest November 2022
Deepankar Malviya
4 Dec 2022 2:24 PM GMT
Supreme Court Bans Two-Finger Test; Says It's Based On Patriarchal Mindset That Sexually Active Women Can't Be RapedState of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai | 2022 LiveLaw (SC) 890 | CrA 1441 of 2022The Supreme Court on Monday prohibited "Two-Finger Test" in rape cases and warned that persons conducting such tests will be held guilty of misconduct. It is regrettable...
State of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai | 2022 LiveLaw (SC) 890 | CrA 1441 of 2022
The Supreme Court on Monday prohibited "Two-Finger Test" in rape cases and warned that persons conducting such tests will be held guilty of misconduct. It is regrettable that "two-finger test" continues to be conducted even today, a bench comprising Justices DY Chandrachud and Hima Kohli lamented while restoring the conviction in a rape case.
"This court has time and again deprecated the use of two finger test in cases alleging rape and sexual assault. The so called test has no scientific basis. It instead re-victimises and re-traumatises women. The two finger test must not be conducted....The test is based on an incorrect assumption that a sexually active woman cannot be raped. Nothing can be further from the truth", the bench observed while pronouncing the judgment.
State of Jharkhand vs Shailendra Kumar Rai @ Pandav Rai | 2022 LiveLaw (SC) 890 | CrA 1441 of 2022
The Supreme Court observed that dying declaration does not become inadmissible merely because it was recorded by police personnel.
Although a dying declaration ought to ideally be recorded by a Magistrate if possible, it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone, the bench of Justices DY Chandrachud and Hima Kohli said.
The court added that the issue of whether a dying declaration recorded by the police is admissible must be decided after considering the facts and circumstances of each case.
Union of India vs Munshi Ram | 2022 LiveLaw (SC) 891 | CA 2811 OF 2022
The Supreme Court observed that the Railway employees working in different Zones/Divisions are required to be treated similarly and equally and are entitled to similar benefits and are entitled to the same treatment.
The bench of Justices MR Shah and BV Nagarathna observed that Commission Vendors/bearers working in the Northern Railway are entitled to have 50% of their services rendered prior to their regularization to be counted for pensionary benefits.
Divya vs National Insurance Co. Ltd. | 2022 LiveLaw (SC) 892 | CA 7605 of 2022
The Supreme Court observed that, while computing motor accident compensation, the multiplier of victims upto the age group of 15 years should be taken as '15'.
There is certainly justification for selecting a lower multiplier of '15' in the case of victims belonging to the age group upto 15 years, the bench of Justices BR Gavai and CT Ravikumar observed.
Gujarat State Civil Supplies Corporation vs Mahakali Foods Pvt. Ltd. | 2022 LiveLaw (SC) 893 | SLP (C) No. 12884/2020
The Supreme Court observed that reference made to the Facilitation Council is maintainable in spite of an independent arbitration agreement existing between the parties to whom the Micro, Small and Medium Enterprises Development Act, 2006 is applicable.
The Facilitation Council, which had initiated the Conciliation proceedings under Section 18(2) of the MSMED Act, 2006 would be entitled to act as an arbitrator despite the bar contained in Section 80 of the Arbitration Act, the bench of CJI UU Lalit and Justice Bela M. Trivedi observed.
Hemant Narayan Rasne vs Commissioner and Administrator of Pune Municipal Corporation | 2022 LiveLaw (SC) 895 | CA 7685/2022
The Supreme Court observed that the Standing Committee of a Municipal Corporation in Maharashtra will be dissolved along with the completion of the term of the Corporation.
"The end of the tenure of Corporation has its consequential effect of the end of the term of the office of the Councillor; and when no person could be said to be holding the office of Councillor after end of the term of the Corporation, existence of any Standing Committee thereafter, is simply out of question", the bench of Justices Dinesh Maheshwari and JK Maheshwari observed.
Directorate of Enforcement vs Padmanabhan Kishore | 2022 LiveLaw (SC) 896 | SLP (Crl.) No. 2668 OF 2022
The Supreme Court set aside a Madras High Court judgment which quashed PMLA proceedings initiated against a 'bribe giver'.
"By handing over money with the intent of giving bribe, such person will be assisting or will knowingly be a party to an activity connected with the proceeds of crime. Without such active participation on part of the person concerned, the money would not assume the character of being proceeds of crime. The relevant expressions from Section 3 of the PML Act are thus wide enough to cover the role played by such person.", the bench of CJI UU Lalit and Justice Bela M. Trivedi observed.
Gujarat State Civil Supplies Corporation vs Mahakali Foods Pvt. Ltd. | 2022 LiveLaw (SC) 893 | SLP (C) No. 12884/2020
The Supreme Court observed that a party who was not 'supplier' on the date of entering into contract cannot seek any benefit as the 'supplier' under the MSMED Act, 2006
If any registration is obtained subsequently the same would have an effect prospectively and would apply to the supply of goods and rendering services subsequent to the registration, the bench of CJI UU Lalit and Justice Bela M. Trivedi observed.
Discretionary & Extraordinary Power U/Sec 319 CrPC Should Be Exercised Sparingly : Supreme Court
Naveen vs State of Haryana | 2022 LiveLaw (SC) 897 | SLP(Crl) 3746 of 2022
The Supreme Court reiterated that the power of a court under Section 319 CrPC is a discretionary and extraordinary power which should be excercised sparingly.
The crucial test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction, the bench of Justices Ajay Rastogi and CT Ravikumar said.
Supreme Court Urges Centre & States To Consider Publication Of Laws In All Regional Languages
Ashwini Kumar Upadhyay v. Union of India & Ors. [WP(C) No. 14/2021] | 2022 LiveLaw (SC) 906
The Supreme Court of India on Tuesday directed the central and state governments to consider a plea to publish all legislations in regional languages to ensure better access for the people whose "conduct and day-to-day lives" would be governed by these legislations. However, the Bench, comprising Chief Justice U.U. Lalit and Justice Bela M. Trivedi, refused to entertain a prayer seeking the publication of the draft legislations before their introduction to enhance transparency and public participation.
POCSO Act - Non-Reporting Of Sexual Assault Despite Knowledge Is A Serious Crime : Supreme Court
State of Maharashtra vs Dr. Maroti s/o Kashinath Pimpalkar | 2022 LiveLaw (SC) 898 | CrA 1874 of 2022
The Supreme Court observed that non-reporting of sexual assault against a minor child despite knowledge is a serious crime.
More often than not, it is an attempt to shield the offenders of the crime of sexual assault, the bench of Justices Ajay Rastogi and CT Ravikumar said while setting aside the Bombay High Court order that quashed criminal proceedings against a medical practitioner who was accused of offence of not reporting POCSO.
X vs M Mahender Reddy | 2022 LiveLaw (SC) 899 | Contempt Petition (C) 555 OF 2022
The Supreme Court reiterated that a rape victim's statement made under Section 164 CrPC should not be disclosed to any person including the accused till charge-sheet/final report is filed.
The bench of CJI UU Lalit and Justice Bela M. Trivedi was considering a contempt petition which highlighted violation of mandatory directions issued in State of Karnataka by Nonavinakere Police vs. Shivanna alias Tarkari Shivanna – (2014) 8 SCC 913 and A vs. State of Uttar Pradesh – (2020) 10 SCC 505
Mohd. Arif @ Ashfaq vs State (NCT Of Delhi) | 2022 LiveLaw (SC) 902 | R.P (Crl) 286-287 OF 2012
The Supreme Court on Thursday affirmed the death penalty awarded to Lakshar-e-Toiba militant Mohammed Arif for the 2000 Red Fort Attack case which resulted in the death of three persons including two army officers. The Court dismissed the review petition filed by him challenging his conviction and sentence.
When there is challenge to the unity, integrity and sovereignty of India by acts of terrorism, such acts are taken as the most aggravating circumstances, the bench comprising Chief Justice UU Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi observed. The court added that this factor completely outweigh the factors which may even remotely be brought into consideration as mitigating circumstances on record.
Yashpal Chopra vs Union of India | 2022 LiveLaw (SC) 900 | SLP(C) 18324/2022
The Supreme Court bench comprising of Justices MR Shah and MM Sundresh observed that a petition to set aside arbitration award is maintainable before a High Court only when it possesses original civil jurisdiction.
In this case, a petition under Section 34 of the Arbitration and Conciliation Act was filed before the concerned District Court. This petition was held to be not maintainable, on the ground that the order of appointment of arbitrator under section 11(6) was a judicial order and section 42 required the appeal to be filed in the Court wherein that application was made. The Orissa High Court allowed the appeal against this order and restored the petition before the District Court.
State of Punjab vs Nachhattar Singh(D) | 2022 LiveLaw (SC) 901 | CA 7257 OF 2022
The Supreme Court observed that mere non-supply of documents to deliquent employee cannot be a ground to set aside disciplinary proceedings.
"Mere non-supply of the documents which may not have resulted any prejudice caused to the employee, the order passed by the disciplinary authority cannot be set aside", the bench of Justices MR Shah and Krishna Murari observed.
In this case, the High Court of Punjab and Haryana at Chandigarh allowed the second appeal preferred by the employee and set aside the punishment imposed by the disciplinary authority on the ground that some documents were not supplied to the delinquent.
S. Kaleeswaran vs State | 2022 LiveLaw (SC) 903 | CrA 160 OF 2017
The Supreme Court observed that skull superimposition technique for idenitification of the dead body cannot be regarded as infallible.
When the super-imposition report is not supported by any other reliable medical evidence like a DNA report or post-mortem report, it would be very risky to convict the accused believing the identification of the dead body of the victim through the super-imposition test, the bench of CJI UU Lalit and Bela M. Trivedi observed.
Employees Provident Fund Organization versus B Sunil Kumar and connected cases | 2022 LiveLaw (SC) 912
In a crucial judgment, the Supreme Court held the provisions of the Employees Pension (Amendment) Scheme 2014 to be legal and valid. However, so far as the present members of the fund are concerned, the Court has read down certain provisions of the scheme.
While allowing the appeals filed by the Employees Provident Fund Organization and the Union Government challenging the Kerala, Rajasthan and Delhi High Court judgments which had quashed the Employee's Pension (Amendment) Scheme, 2014, the Court read down certain provisions of the scheme.
In Re Perry Kansangra | 2022 LiveLaw (SC) 905 | Suo Motu Contempt Petition (Civil) 3 OF 2021
The Supreme Court has sentenced an Kenyan Citizen of Indian Origin to six months simple imprisonment finding him guilty of contempt of court.
Perry Kansangra has deliberately and with a clear intention committed egregious acts of contempt, the bench of CJI UU Lalit and Justice PS Narasimha said.
In a judgment delivered in 2020, the Supreme Court, in a child custody matter, held that the father Perry Kansangra was entitled to the custody of the child. A condition was also imposed that he should obtain a "mirror order" from the corresponding Kenyan court within two weeks to take the child to Kenya. Later, the mother Smriti Kansagra filed an application stating that the father got custody by allegedly giving a forged or wrong mirror order from the Kenyan High Court. It was also alleged that he not only refused to obey the directions granting visitation or meeting rights to the mother but also moved the Kenyan court for declaration of invalidity of Indian jurisdiction.
Kiran Tomar vs State of Uttar Pradesh | 2022 LiveLaw (SC) 904 | CA 1865 of 2022
The Supreme Court observed that the income tax returns may not be an accurate guide of the real income of parties engaged in a matrimonial conflict.
Family Court has to determine the real income on a holistic assessment of the evidence before it, the bench of Justices DY Chandrachud and Hima Kohli said.
In this case, the Family Court ordered a Husband to pay maintenance at the rate of Rs 20,000 per month to his wife and Rs 15,000 each to their daughters. This was based on a finding that he is earning Rs. 2 lacs as monthly income. While considering the revision petition filed by the Husband, the High Court noticed as per the Income Tax Return (I.T.R.) filed by thim he is only earning Rs. 4.5 lacs per annum. It was further observed that the Family Court had not indicated the basis on which it had assessed his income at Rs Two Lakhs per month
Borrower Cannot Claim Extension Of Time Period Under OTS Scheme As A Matter Of Right : Supreme Court
State Bank of India vs Arvindra Electronics Pvt. Ltd. 2022 LiveLaw (SC) 908 | CA 6954 OF 2022
The Supreme Court observed that a borrower cannot claim extension of time period under One Time Settlement Scheme as a matter of right.
The bench of Justices MR Shah and Krishna Murari observed said that a High Court cannot invoke writ jurisdiction to extend the time period under the OTS scheme. Directing the Bank to reschedule the payment under OTS would tantamount to modification of the contract, it added.
B A Umesh vs Union of India | 2022 LiveLaw (SC) 907 | CA 1892 OF 2022
The Supreme Court bench comprising of CJI UU Lalit, S. Ravindra Bhat and PS Narasimha commuted death sentence of a murder accused taking into account his illegal solitary confinement for about ten years.
BA Umesh alias Umesh Reddy, an ex-cop, was sentenced to death in a rape and murder case by a Sessions Court in Bengaluru upon being convicted in the year 2006. He was found guilty of rape and murder of a house wife. Later, the Supreme Court upheld the death sentence awarded to him in year 2011. The mercy petition was rejected by the President of India and challenging the same he approached the Karnataka High Court. As the writ petition filed by him got dismissed, he approached the Apex Court.
Dr. NTR University of Health Sciences vs Dr. Yerra Trinadh | 2022 LiveLaw (SC) 909 | CA 8037 OF 2022
The Supreme Court disapproved the practice of High Courts of calling for the answer scripts/sheets to order revaluation.
The bench of Justices MR Shah and MM Sundresh reiterated that re-evaluation cannot be ordered if the regulations does not provide for the same. Sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet, the bench said.
Shakeel Ahmed vs Union of India | 2022 LiveLaw (SC) 910
Almost thirty years after the communal riots which rocked Bombay in 1992-93 after the demolition of Babri Masjid, the Supreme Court on Friday issued a slew of directions for payment of compensation to the families of victims and for revival of criminal cases which are lying dormant.
The Court observed that there was a failure on the part of the State Government to maintain law and order and to protect the rights of the people guaranteed under Article 21 of the Constitution of India.
Employees Provident Fund Organization versus B Sunil Kumar and connected cases | 2022 LiveLaw (SC) 912
In a significant judgment impacting lakhs of workers across the country, the Supreme Court on Friday upheld the Employees' Pension (Amendment) Scheme 2014, which, among other things, capped the maximum salary for joining the EPF Pension Scheme as Rs 15,000 per month with effect from September 1, 2014.
However, the Court has allowed an additional window of four months period for those who were members of the scheme before the 2014 amendment and whose salaries exceed the threshold introduced in 2014 to join the scheme by exercising the higher option. As per the 2014 amendment, members whose monthly salary exceeded Rs.15,000/- had to exercise a fresh option to join the scheme within a period of six months from September 1, 2014. Also, such employees had to make an additional contribution at the rate of 1.16 per cent on salary exceeding fifteen thousand rupees. This condition for additional contribution has also been invalidated by the Court on the ground that it is ultra vires the Employees Provident Fund and Miscellaneous Provisions Act 1952.
OCL India Limited vs State of Orissa | 2022 LiveLaw (SC) 911 | CA 2348 OF 2004
The Supreme Court upheld States' power to impose entry tax from Industrial Township/Areas.
The bench of CJI UU Lalit, Justices S. Ravindra Bhat and J B Pardiwala held that industrial townships are 'local area' for the purposes of entry tax.
The court dismissed appeals against filed against (1) Orissa High Court Judgment by OCL India Ltd. and Steel Authority of India Ltd. and (2) the Allahabad High Court judgment by Hindustan Aluminium Company Ltd.
Mahanadi Coal Fields Ltd. & Anr. v. Mathias Oram & Ors. [MA No. 231 of 2019 in SLP (C) No. 6933 of 2007] and other connected matters | 2022 LiveLaw (SC) 916
The Supreme Court recently came to relief of several persons who were displaced during 1988 when their lands in Odisha villages were acquired for Mahanadi Coalfields Ltd, a subsidiary of Coal India Ltd.
The bench comprising of Chief Justice of India UU Lalit, Justices S Ravindra Bhat and Bela M Trivedi held that the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 -which introduces more beneficial provisions for compensation and rehabilitation for persons displaced after compulsory land acquisition- will apply to the persons in the four villages whose lands were acquired for the coal fields.
VGP Marine Kingdom Pvt Ltd vs Kay Ellen Arnold | 2022 LiveLaw (SC) 914 | CA 6679 OF 2022
The Supreme Court bench comprising of Justices MR Shah and Krishna Murari reiterated that while considering application under Section 11(6) of the Arbitration and Conciliation Act, the dispute with respect to the arbitrability should be left to the arbitrator, unless on the face it is found that the dispute is not arbitrable.
In this case, the Madras High Court dismissed an application to appoint an arbitrator on the ground that at the time when the application was filed there were already arbitral proceedings pending between the parties and the award was passed and (2) that the proceedings were pending before the NCLT on the allegation of mismanagement and oppression.
Delhi Development Authority vs Damini Wadhwa | 2022 LiveLaw (SC) 913 | CA 7962 OF 2022
The Supreme Court bench of Justices MR Shah and MM Sundresh reiterated that a subsequent purchaser has no right to claim lapse of acquisition proceedings.
In this case, the land in question was notified to be acquired under Section 4 of the Land Acquisition Act, 1894 on 25.11.1980; declaration under Section 6 was issued on 07.06.1985; and award came to be declared by the Collector on 17.06.1987. Before the High Court, the writ petitioner claimed the right, title, or interest in the lands in question on the basis of the Agreement to Sell dated 22.05.2016 and challenged the acquisition. The said writ petition was allowed by the High Court.
Ashok Kumar Chandel vs State of UP | 2022 LiveLaw (SC) 915 | CrA 946-947 OF 2019
The Supreme Court bench comprising of CJI UU Lalit, Justices S. Ravindra Bhat and PS Narasimha observed that a Ballistic Report forwarded by Director/ Deputy Director/ Assistant Director of a lab under the seal can be said to be in compliance with the statutory requirement under Section 293 Cr.P.C.
Section 293 of the Code of Criminal Procedure reads as follows: Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
M S Radhakrishnan vs The State Of Karnataka | 2022 LiveLaw (SC) 918 | WP(Crl) 347 OF 2022
The Supreme Court bench comprising of Justices MR Shah and MM Sundresh directed the Central Bureau of Investigation [CBI] to investigate the death of a medical student in Mangaluru.
Rohit Radhakrishnan, a Keralite, was a student of A J Institute of Medical Science in Mangalore. His headless body was found near Tannirbhavi on March 23, 2014. The investigation that followed concluded that the death was due to an accident. Strangely, an abated charge-sheet was also filed against deceased for the offence of rash driving and for causing death by negligence under Sections 279, 304A IPC read with Section 185 of the Motor Vehicles Act. His father thus approached the Apex Court seeking a direction for investigation in this matter by the CBI.
State Bank of India vs Assistant Commissioner of Income Tax | 2022 LiveLaw (SC) 917 | CA 8181 OF 2022
The Supreme Court bench comprising of CJI UU Lalit, Justices Ravindra Bhat and Sudhanshu Dhulia has observed that Leave Travel Concession (LTC) is not for foreign travel and is meant for travel within India.
The moment employees undertake travel with a foreign leg, it is not a travel within India and hence not covered under the provisions of Section 10(5) of the Income Tax Act.
The court dismissed the appeal filed by State Bank of India against the Delhi High Court judgment which held that the amount received by the SBI employees towards their LTC claims is not liable for the exemption as these employees had visited foreign. The Revenue had held SBI to be an "assessee in default", for not deducting the tax at source of its employees.
PMLA Prosecution Cannot Continue If Accused Is Discharged From The Scheduled Offence: Supreme Court
Indrani Patnaik vs Enforcement Directorate | 2022 LiveLaw (SC) 920 | WP(C) 368 OF 2021
The Supreme Court reiterated that the prosecution under the Prevention of Money-Laundering Act cannot continue if the accused is discharged from the scheduled offence.
The court observed thus while allowing a writ petition filed by one Indrani Patnaik and others. They contended that their prosecution in relation to the scheduled offence had already come to an end as they were discharged from the criminal case. They contended that consequentially, the PMLA proceedings also could not continue.
Supreme Court Upholds EWS Quota By 3:2 Majority; CJI Lalit & Justice Bhat In Minority
Janhit Abhiyan v. Union Of India with 32 connected matters | W.P.(C)NO.55/2019 and connected issues
The Supreme Court Constitution Bench has by 3:2 majority upheld the validity of the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment.
While Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala upheld the 103rd Constitution Amendment, Justice S Ravindra Bhat wrote a dissenting judgment to strike it down. Chief Justice of India Uday Umesh Lalit concurred with the minority view of Justice Bhat.
Mohd. Abdullah Azam Khan v. Nawab Kazim Ali Khan [CA No. 104/2020]
A Division Bench of the Supreme Court of India on Monday dismissed the challenge against a decision of the Allahabad High Court to disqualify Rampur MLA Mohd. Abdullah Azam Khan for not having attained the age of 25 years on the date of the election as prescribed in Article 173(b) of the Constitution. In 2019, the Allahabad High Court struck a major blow to Khan's electoral aspirations when the petitioner, one Nawab Kazam Ali Khan, moved the Court claiming that the young politician from the Samajwadi Party had falsely represented himself to be older for the purpose of contesting the assembly elections. The Bench, comprising Justices Ajay Rastogi and B.V. Nagarathna, dismissed the appeal, with Justice B.V. Nagarathna delivering a separate but concurring judgement.
Supreme Court Holds PILs Filed In HC For Probe Against Jharkhand CM Hemant Soren As Not Maintainable
State of Jharkhand v. Shiv Shankar Sharma| SLP(C) 10622/2022, Hemant Soren v. Shiv Shankar Sharma SLP(C) No.11364-11365/2022
In a relief to the Chief Minister of Jharkhand Hemant Soren, the Supreme Court on Monday held that the Public Interest Litigation petitions filed in the Jharkhand High Court seeking probe against him for alleged money laundering are not maintainable.
The Top Court set aside the order of the High Court which held as maintainable the PILs which sought probe against Soren for alleged money laundering through shell companies and obtaining a mining lease while he was in power.
Janhit Abhiyan v. Union Of India with 32 connected matters | W.P.(C)NO.55/2019 and connected issues
Two Supreme Court judges who were in the majority which upheld the 10% quota for Economically Weaker Sections (EWS) made observations in their judgments regarding the need for a time-limit for reservations.
Justice Bela Trivedi, as parting comments in her judgment, stated that there is a need to revisit the system of reservation after 75 years of independence.
Justice Pardiwala, concurring with the majority view upholding the EWS quota, said that reservation cannot go on for an indefinite period so as to become a "vested interest".
Janhit Abhiyan v. Union Of India with 32 connected matters | W.P.(C)NO.55/2019 and connected issues
The Supreme Court Court Constitution Bench has by 3:2 majority upheld the validity of the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment. While Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala upheld the 103rd Constitution Amendment, Justice S Ravindra Bhat wrote a dissenting judgment to strike it down. Chief Justice of India Uday Umesh Lalit concurred with the minority view of Justice Bhat.
50% Ceiling Limit For Reservation Flexible: Supreme Court In EWS Quota Case
Janhit Abhiyan v. Union Of India with 32 connected matters | W.P.(C)NO.55/2019 and connected issues
In an important judgement, the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment was upheld by the Supreme Court Constitution Bench with a 3:2 majority. Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala upheld the amendment and Justice S Ravindra Bhat along with CJI UU Lalit dissented with the majority view. While upholding the amendment, Justice Dinesh Maheshwari stated that the 50% ceiling limit was "not inflexible" and thus, the breaching of the said limit did not violate the basic structure of the Indian Constitution in any way.
Janhit Abhiyan v. Union Of India with 32 connected matters | W.P.(C)NO.55/2019 and connected issues
The Supreme Court held that 103rd Constitution Amendment cannot be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided educational institutions.
[EWS Quota] Why Supreme Court's Minority Judgment Did Not Read Down 103rd Constitutional Amendment ?
Janhit Abhiyan v. Union Of India with 32 connected matters | W.P.(C)NO.55/2019 and connected issues
The Constitution Bench of the Supreme Court by 3:2 majority upheld the validity of the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment.
Justice S Ravindra Bhat, with whom Chief Justice of India Uday Umesh Lalit joined, authored a dissenting opinion to strike it down. According to the minority view, the amendment – by excluding backward classes – is violative of the basic structure.
Janhit Abhiyan v. Union Of India with 32 connected matters | W.P.(C)NO.55/2019 and connected issues
The Supreme Court observed that the reservation is an exception to the general rule of equality and thus cannot be regarded as basic feature of the Constitution.
One of the main defence raised by the Centre was that the 103rd Constitutional amendment is enabling, and confer power upon the state, to make special provisions and reservations, based on the economic criterion – thus, cannot violate the basic structure.
SC/ST/OBC Exclusion From EWS Quota Logical, Necessary To Avoid Double Benefits: Supreme Court
Janhit Abhiyan v. Union Of India with 32 connected matters | W.P.(C)NO.55/2019 and connected issues
The Supreme Court by 3:2 majority upheld the validity of the 103rd Constitutional Amendment which introduced 10% reservation for Economically Weaker Sections (EWS) in education and public employment. Justices Dinesh Maheshwari, Bela Trivedi and JB Pardiwala upheld the 103rd Constitution Amendment, Justice S Ravindra Bhat wrote a dissenting judgment, which was concurred with by the Chief Justice of India Uday Umesh Lalit.
State of Jharkhand vs Shiv Shankar Sharma | 2022 LiveLaw (SC) 924 | SLP(C) No.10622-10623 OF 2022
The Supreme Court observed that the bona fide of the petitioner who files the Public Interest Litigation (PIL) is an extremely relevant consideration and must be examined at the very threshold itself.
This has to be done irrespective of the seemingly high public cause being espoused by the petitioner in a PIL, the bench of CJI Uday Umesh Lalit, Justices S. Ravindra Bhat and Sudhanshu Dhulia observed.
P Ponnusamy vs State of Tamil Nadu | 2022 LiveLaw (SC) 923 | SLP(Crl) 9288 of 2022
The Supreme Court (2:1) held that an accused has the right to receive the list of the statements, documents, material, etc. in the possession of the prosecution even if Draft Rules of Criminal Practice are not yet adopted.
The CJI Uday Umesh Lalit and Justice S. Ravindra Bhat disagreed with the Justice Bela M. Trivedi who, while dismissing a criminal appeal, observed that this right is available only after the Draft Rules are brought into force.
Municipal Corporation of Greater Mumbai vs Property Owners Association | 2022 LiveLaw (SC) 927 | SLP(C) 17009 of 2019
The Supreme Court observed that for determining capital value for imposing property tax under Mumbai Municipal Corporation Act, only the present physical attributes and status of the land and building can be considered and not the future prospects of the land.
The bench comprising CJI Uday Umesh Lalit and Justice Ajay Rastogi dismissed appeals filed by Mumbai Municipal Corporation which held that Rules 20, 21 and 22 of the Capital Value Rules 2010 and 2015 are ultra vires the provisions of the MMC Act. Appeals filed against that part of the judgment of the High Court which upheld validity of various provisions of the MMC Act have also been dismissed.
Rahul vs State of Delhi Ministry of Home Affairs and Anr | Crl. A. No. 611/2022 | 2022 LiveLaw (SC) 926
The Supreme Court on Monday acquitted the three people accused of committing murder and rape of a 19-year-old girl in the 2012 Chhawla Gang Rape Case. They were earlier convicted by the trial court and sentenced to death penalty which was ratified by the Delhi High Court on 26th August 2014.
The bench of Chief Justice U. U. Lalit and Justices S. Ravindra Bhat and Bela M. Trivedi allowed the appeals filed by the three accused Rahul, Ravi and Vinod, assailing the judgments of the Delhi High Court. The bench set aside the orders of conviction passed by the trial court and the High Court stating that, "Every case has to be decided by the Courts strictly on merits and in accordance with law without being influenced by any kind of outside moral pressures."
Mohd. Abid vs Ravi Naresh | 2022 LiveLaw (SC) 921 | SLP(Crl) 5444/2022
The Supreme Court observed that the proceedings under Section 145/146 Cr.P.C must come to an end once the Civil Court is seized of the matter.
The interse rights of the parties regarding title or possession are eventually to be determined by the Civil Court, the bench of Justices said.
The court observed thus while considering a special leave petition against the order of Allahabad High Court that quashed passed by a magistrate under Section 146 CrPC. The dispute between the parties in this case is regarding a plot consisting of some shops and a residential house constructed on it, situated in Mohalla Angooribagh, Faizabad, Uttar Pradesh.
Narayana Medical College vs State of Andhra Pradesh | 2022 LiveLaw (SC) 929 | SLP(C) 29692970 of 2021
"Education is not the business to earn profit. The tuition fee shall always be affordable", the Supreme Court remarked while setting aside a Government order issued by State of Andhra Pradesh that enhanced the tuition fee of Private Medical Colleges by seven times, to Rs. 24 lakhs per annum.
The bench of Justices MR Shah and Sudhanshu Dhulia observed that the G.O. enhancing the tuition fee on the representations made by the private medical colleges was 'wholly impermissible and most arbitrary and only with a view to favour and/or oblige the private medical colleges'.
Raj Process Equipments And Systems vs Honest Derivatives Pvt. Ltd. | 2022 LiveLaw (SC) 928 | CA 8089 OF 2022
The Supreme Court bench of Justices S. Abdul Nazeer and V. Ramasubramanian observed that the time period for filing written statement is not mandatory if the suit was instituted in a civil court and transferred to a Commercial Court after the expiry of 120 days.
The plaintiffs filed a suit for recovery of damages on the file of the Civil Court Senior Division Jalgaon in December, 2017. As two among the defendants failed to file written statement within prescribed period, the Trial Court ordered that the suit be proceeded without their written statement. As the other two had not even entered appearance, it passed an order directing the proceeding to go on ex parte against them.
Col Anil Kumar Gupta vs Union of India | 2022 LiveLaw (SC) 931 | CA 8968 OF 2019
The Supreme Court bench of CJI UU Lalit and Justice Bela M. Trivedi set aside a court martial proceedings against an army officer on the ground that it was barred under limitation prescribed under Section 122 of the Army Act.
In this case, a colleague of Col Anil Kumar (appellant), wrote a letter on 13.08.2015 to his superior in which he alleged that the appellant was sending indecent messages to his wife which were sexually explicit in nature and that he had reasonable cause to believe that they had indulged in illegitimate physical relationship with each other.
Consumer Commission Can Condone Delay For Filing Written Version Upto 15 Days Only : Supreme Court
Antriksh Developers And Promoters Private Limited vs Kutumb Welfare Society | 2022 LiveLaw (SC) 930 | SLP (Diary) 31629/2022
The Supreme Court observed that a Consumer Commission has no jurisdiction to condone the delay for filing opposite party's written version beyond the prescribed period of 15 days mentioned in the Consumer Protection Act, 2019.
Before the National Consumer Disputes Redressal Commission (NCDRC) in this case, the opposite party filed written statement (version) beyond the period of 45 days. The Commission refused to condone the delay by observing thus: "Time for filing the Written Version as provided under Section 13 (1) (a) of the Consumer Protection Act, 1986 now replaced by Section 38 (2) (a) of the Consumer Protection Act, 2019 which is in force since 20/24.07.2020 has expired. This Commission does not have the power to condone the delay beyond 30 + 15 days as provided in the statute. Right of Opposite Party No.2 to file the Written Version stands closed."
Balu Krishna Chavan vs Reliance General Insurance Company Limited | 2022 LiveLaw (SC) 932 | SLP(C) No. 33638/2017
The Supreme Court observed that ordinarily there shall be no direction to "pay and recover" if the Insurance Company is not liable.
The bench of Justices AS Bopanna and PS Narasimha observed thus while considering an appeal filed by a claimant against the Bombay High Court which held that the Insurance Company was not liable to reimburse the compensation.
The issue raised in this appeal was whether the Insurance Company should be directed to "pay and recover" in the facts arising in the case.
Ravi Namboothiri vs K A Baiju | 2022 LiveLaw (SC) 933 | CA 8261 - 8262 OF 2022
The Supreme Court observed that the failure of a candidate to disclose his conviction for an offence under the Kerala Police Act 1960 for holding a dharna in front of the Panchayat office cannot be a ground for declaring his election void under Kerala Panchayat Raj Act.
An offence under enactments such as Kerala Police Act (1960) are not substantive offences, the bench of Justices S. Abdul Nazeer and V. Ramasubramanian observed.
Ravi Namboothiri vs K A Baiju | 2022 LiveLaw (SC) 933 | CA 8261 - 8262 OF 2022
Protest is a tool in the hands of the civil society and police action is a tool in the hands of the Establishment, the Supreme Court remarked in a recent judgment regarding a Kerala Panchayat election dispute.
The bench of Justices S. Abdul Nazeer and V. Ramasubramanian observed thus while allowing appeal filed by an elected candidate whose election was declared void on the ground that he failed to disclose his conviction under Kerala Police Act, 1960 for 'disobeying police directions' in relation to a dharna he had conducted.
Purpose Of Land Acquisition Also A Relevant Factor For Determining Market Value : Supreme Court
S. Shankaraiah vs Land Acquisition Officer and Revenue Divisional Officer Peddapali Karimnagar Dist | 2022 LiveLaw (SC) 934 | CA 6821 OF 2022
The Supreme Court bench of Justices MR Shah and Krishna Murari reiterated that the purpose for which the land acquisition is made is also a relevant factor for determining the market value
A large extent of land in Adrial Village of Manthani Mandal, Karimnagar District of Andhra Pradesh was acquired by the State Government for the benefit of Singareni Collieries Company Limited. Not satisfied with the compensation awarded by the Land Acquisition Officer, the land owners sought references under Section 18 of the Land Acquisition Act, 1894. The Reference Court fixed the market value at Rs.30,000/ per acre and Rs.50,000/ per acre. The Reference Court also awarded the compensation @ Rs.15,000/ per acre towards subsoil mineral rights. Later, the High Court modified this award and fixed the compensation @ Rs.80,000/ per acre considering the market value of the land Rs.1,23,000/ per acre and thereafter deducting 1/3rd towards the developmental activities. The High Court has also in addition awarded Rs.10,000/ per acre as part of the market value for subsoil rights. Aggreived with this, the original claimants/land owners preferred appea seeking enhancement of the amount of compensation.
V.S. Ramakrishnan vs. P.M. Muhammed Ali | 2022 LiveLaw (SC) 935 | CA 8050-8051 OF 2022
The Supreme Court observed that a specific issue on readiness and willingness on the part of the plaintiff must be framed by the trial court in a suit for specific performance.
The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same, the bench of Justices MR Shah and MM Sundresh observed.
Sumer Corporation vs Vijay Anant Gangan | 2022 LiveLaw (SC) 936 | CA 7774 OF 2022
The Supreme Court, in a judgment delivered on Wednesday (9 Nov 2022), explained the method to determine the compensation for use and occupation of the tenancy premises by a tenant who suffered an eviction decree.
From the date of the decree of eviction, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises, the bench of Justices MR Shah and MM Sundresh observed.
Prof. Narendra Singh Bhandari vs Ravindra Jugran | 2022 LiveLaw (SC) 940 | CA 8184 OF 2022
The Supreme Court reiterated that the Vice-Chancellor appointment has to be made out of the panel of the names recommended by the Search-cum-Selection Committee.
Most meritorious person should be appointed as Vice-Chancellor of the University from and amongst the other eligible meritorious candidates out of the panel of the names recommended by the Search-cum-Selection Committee, the bench of Justices MR Shah and MM Sundresh observed while upholding the Uttarakhand High Court judgment which set aside the appointment of Prof. Narendra Singh Bhandar as Vice-Chancellor of Soban Singh Jeena University.
Bawa Paulins Pvt. Ltd. vs UPS Freight Services (India) Pvt. Ltd. | 2022 LiveLaw (SC) 938 | SLP(C) 16722 of 2015
The Supreme Court observed that a letter of credit is independent of and unqualified by the contract of sale or underlying transactions.
The court observed thus in a judgment delivered in an appeal filed against the order passed by National Consumer Disputes Redressal Commission
Bawa Paulins Pvt. Ltd. entered into a contract with County Seat Stores, New York for export of two hundred and thirty-four (234) packages of MN's 100% CTN Twill messenger bags for a total invoice value of US$ 31,920 (equivalent to Rs.13,79,901/- approximately). The mode of payment was agreed to be through Letter of Credit against the Forwarder Cargo Receipt ("FCR", for short). For the said purpose, the consignee appointed Bank of Bostons as the purchaser's bank through which the Letter of Credit was opened.
Bank of Rajasthan Ltd. vs VCK Shares & Stock Broking Services Ltd. | 2022 LiveLaw (SC) 941 | CA 8972-8973 OF 2014
The Supreme Court held that a Civil Court has jurisdiction to try a suit filed by a borrower against a Bank or Financial Institution.
Answering the reference made to to it, the three judges bench presided by Justices Sanjay Kishan Kaul observed that an independent suit filed by the borrower against the bank or financial institution cannot be transferred to be tried along with application under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.
Suresh G. Ramnani vs Aurelia Ana De Piedade Miranda @ Ariya Alvares | 2022 LiveLaw (SC) 939 | SLP(C) 20623 of 2019
The Supreme Court observed that an application seeking to assign a review petition to a particular HC judge should be placed before Chief Justice of the High Court and not to be dealt on judicial side.
Justice GS Patel reserved a second appeal for judgment while he was sitting at the Goa Bench of the Bombay High Court. The judgment allowing the second appeal was delivered through virtual mode by the Judge while sitting at Bombay. The respondent thereafter filed a review petition which was listed before Justice Nutan D. Sardessai who admitted it. An application was filed by the other party praying that the review petition be transferred and be placed before Justice G.S. Patel for final disposal. This application was dealt by Justice Prithviraj K. Chavan who rejected it. Against the said order, the party approached the Apex Court.
Registrar of Assurances vs ASL Vyapar Private Limited | 2022 LiveLaw (SC) 942 | CA 8281 of 2022
The Supreme Court observed that a Registering Authority cannot sit in appeal over the decision of the Court permitting sale at a particular price.
Public auction carried out through court process/receiver is the most transparent manner of obtaining the correct market value of the property, the bench comprising Justices Sanjay Kishan Kaul, Abhay S. Oka and Vikram Nath observed.
The bench observed thus while answering a reference by a two judges bench regarding the scope Section 47A India Stamp Act (as applicable to West Bengal).
State of Uttarakhand vs Nalanda College of Education | 2022 LiveLaw (SC) 943 | CA 8013 OF 2022
The Supreme Court observed that a State Government decision not to recommend further recognition to the new B.Ed. colleges on the need basis cannot be said to be arbitrary.
When the State Government is required to provide detailed reasons against grant of recognition with necessary statistics, it includes the need and/or requirement, the bench of Justices MR Shah and MM Sundresh observed.
Pioneer Overseas Corporation USA vs Commissioner Of Income Tax | 2022 LiveLaw (SC) 944 | SLP(C) 21488/2017
The Supreme Court observed that the levy of simple interest on non-payment of the tax @ 1% p.a. is mandatory.
Merely raising the dispute before any authority cannot be a ground not to levy the interest and/or waiver of interest under Section 220(2A) of the Income Tax Act, the bench of Justices MR Shah and MM Sundresh observed.
In this case, the Competent Authority rejected the application of the petitioner for waiver of interest while exercising the powers under Section 220(2A) of the Act.
Supreme Court Upholds Election Of Office Bearers Of Eastern India Regional Council Of ICSI
Institute Of Company Secretaries of India vs Biman Debnath | 2022 LiveLaw (SC) 945 | CA 8039 OF 2022
The Supreme Court has set aside the Calcutta High Court judgment that quashed the election of the office bearers of the Eastern India Regional Council of the Institute of Company Secretaries of India.
The High Court seriously erred in setting aside the election on the ground that the meeting was not presided over by the Vice Chairman., the bench of Justices MR Shah and MM Sundresh observed while allowing the appeal filed by ICSI and the elected Chairman against the High Court judgment.
Nepal Das vs High Court of Calcutta | 2022 LiveLaw (SC) 946 | WP (Crl) 306/2022
"Ignorance of law is no defence", the Supreme Court remarked while dismissing a writ petition seeking directions for expeditious hearing of a petition pending before a High Court.
One Nepal Das had approached the Apex Court by filing a writ petition seeking expeditious hearing of petition by the Calcutta High Court.
"Petition under Article 32 of the Constitution of India is filed seeking directions for expeditious hearing of a petition which is already pending before the High Court! Ignorance of law is no defence. More than that such kind of petitions seem to be leading the litigant up the garden path.", the bench of Justices Sanjay Kishan Kaul and Abhay S. Oka observed.
High Court Cannot Exercise The Power Of Remission Itself : Supreme Court
State of Haryana vs Daya Nand | 2022 LiveLaw (SC) 948 | SLP(Crl) 10687/2022
The Supreme Court observed that while exercising the power of judicial review, a High Court cannot excercise the power of remission itself.
In this case, the convict in a murder case had undergone 12 years and 9 months of actual sentence and 14 years and 6 months with remission when he sought premature release. The authorities kept the issue pending which made him approach the Punjab and Haryana High Court by filing a writ petition. The High Court allowed the request for remission itself on the premise that it is covered by the policy.
Reliance Industries Limited. vs Vijayan A (Authorised Representative of SEBI) | 2022 LiveLaw (SC) 950 | CONMT.PET.(C) No. 570/2022
Merely because the stay application is pending in review petition cannot be a ground to not comply with the directions issued by this Court, the Supreme Court observed while issuing notice in a Contempt Petition filed by Reliance Industries Limited.
The bench of Justices MR Shah and MM Sundresh observed that the pendency of an appeal and/or writ petition along with stay cannot be equated with pendency of the review petition.
Cdr Amit Kumar Sharma vs Union of India | 2022 LiveLaw (SC) 951 | CA 841-843 of 2022
The Supreme Court observed that sealed cover procedure sets a 'dangerous precedent' as it makes 'the process of adjudication vague and opaque'.
The bench of Justices DY Chandrachud and Hima Kohli , in a judgment delivered on 20 October 2022, observed that this procedure affects the functioning of the justice delivery system and causes a serious violation of natural justice.
The measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve, the bench observed, adding that the exceptions should not become the norm.
Amit Singh vs Ravindra Nath Pandey | 2022 LiveLaw (SC) 953 | CA 8324-8327 OF 2022
The Supreme Court observed that inter se seniority of direct recruits and promotees in a particular service has to be determined as per the service rules.
The writ petitioners before the Allahabad High Court were initially appointed as Consolidators in the Consolidation Department in various districts. They were promoted to the post of ACOs on various dates in the year 1997. Direct recruits were directly appointed to the post of ACOs, on the basis of the recommendation of the Uttar Pradesh Subordinate Services Selection Commission and as per the recruitment process under the Uttar Pradesh Revenue Consolidation Service Rules, 1992 (hereinafter referred to as "the 1992 Rules"). The direct recruits were appointed on 18th August 1997. As such, both the promotees as well as the direct recruits came in the cadre of the ACOs in the recruitment year of 1997-1998, i.e. between 1 st July 1997 and 30th June 1998.
Gireesan Nair vs State of Kerala | 2022 LiveLaw (SC) 955 | CrA 1864-1865 OF 2010
The Supreme Court observed that evidence of Test Identification Parade (TIP) is inadmissible If the suspects were shown to the witnesses before the identification.
Even a TIP conducted in the presence of a police officer is inadmissible, the bench of Justices BR Gavai and PS Narasimha observed.
In this case, the High Court of Kerala upheld the conviction of the accused under Sections 143, 147, 148 of the Indian Penal Code, and Sections 3(2)(e) of Prevention of Damages to Public Property Act, 1984, read with Section 149 of the IPC. The conviction was mostly based on the evidence of TIP. The accused were allegedly involved in a violent protest against the Kerala Government decision to delink predegree courses from colleges and start plus two courses at the school level. The protesters had become violent and caused damage to as many as 81 buses belonging to the Kerala State Road Transport Corporation leading to the death of a bus conductor with KSRTC.
Bhuri Bai vs State of Madhya Pradesh | 2022 LiveLaw (SC) 956 | CrA 1972 of 2022
The Supreme Court observed that cancellation of bail cannot be ordered merely for any perceived indiscipline on the part of the accused before granting bail.
"The powers of cancellation of bail cannot be approached as if of disciplinary proceedings against the accused", the bench of Justices Dinesh Maheshwari and Sudhanshu Dhulia observed. It added that Section 439(2) CrPC is envisaged only in such cases where the liberty of the accused is going to be counteracting the requirements of a proper trial of the criminal case.
Mohammed Sadiq vs Deepak Manglani | 2022 LiveLaw (SC) 957 | CA 8028 of 2022
There is no bar for someone who is pursuing higher studies, to start a business, the Supreme Court observed while upholding an eviction order passed on the ground of bonafide requirement/need.
In this case, the landlord sought eviction of the tenant on two grounds: One, wilful default in payment of rent and two, bona fide requirement of the premises for the own use of the landlord. The applicable law was Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.
Singapore Airlines Ltd. vs C.I.T., Delhi | 2022 LiveLaw (SC) 959 | CA 6964-6965 OF 2015
The Supreme Court held that Section 194H of the Income Tax Act is attracted in the case of Supplementary Commission amounts earned by the travel agent and therefore Airlines are liable to deduct TDS in this regard.
The bench comprising Justices Surya Kant and MM Sundresh upheld the Delhi High Court judgment and overruled the Bombay High Court judgment in CIT v. Qatar Airways [2009 SCC OnLine Bom 2179] that had held otherwise.
Divya Bharti vs State of Bihar | 2022 LiveLaw (SC) 961 | SLP(Crl) 8498/2022
The Supreme Court set aside an anticipatory bail condition imposed by Patna High Court directing a Panchayat Teacher to return her salary.
The bench of Justices Ajay Rastogi and CT Ravikumar observed that such conditions are neither justified nor required to be imposed while granting anticipatory bail.
Laxmi Srinivasa R And P Boiled Rice Mill vs State Of Andhra Pradesh | 2022 LiveLaw (SC) 964 | SLP(C) 11225/2022
The Supreme Court observed that time period excluded under Section 14 of Limitation Act cannot be counted for the purpose of computing the period for which delay can be condoned.
Exclusion of time is different, and cannot be equated with condonation of delay, the bench of Justices Sanjiv Khanna and J K Maheshwari observed.
Randeep Singh vs State of U T Chandigarh | 2022 LiveLaw (SC) 962 | SLP(Crl) 8206/2019
The Supreme Court reduced the sentence imposed on a husband convicted under Section 498A IPC after his wife submitted before it that she wants to join her husband and revive their matrimonial life.
In this case, the husband was concurrently convicted under Section 498A of the Indian Penal Code. The Trial Court had imposed punishment of two years and the same was upheld by the Appellate Court. The High Court, in its Revisional jurisdiction did not interfere with the judgment of conviction but reduced the substantive sentence to six months.
Gurdev Singh vs Harvinder Singh | 2022 LiveLaw (SC) 963 | SLP(C) 19018/2022
The Supreme Court observed that a plaint cannot be rejected under Order VII Rule 11 CPC merely on the ground that 'the plaintiff is not entitled to any relief in the suit'.
In this case, the plaintiff filed a suit for permanent injunction against the defendant. The defendant filed an application under Order VII Rule 11 CPC seeking rejection of the plaint and the same was dismissed by the Trial Court holding that reading of the plaint prima facie disclosed cause of action to the plaintiff.
The State Of Jammu And Kashmir (Now U.T. Of Jammu And Kashmir) And Ors Versus Shubam Sangra| Crl.A. No. 1928/2022
The Supreme Court on Wednesday set aside the orders of the Chief Judicial Magistrate, Kathua and the Jammu and Kashmir High Court which held that one of the accused in the Kathua rape-murder case was a juvenile.
The Apex Court has directed that the said accused Shubham Sangra should be tried as an adult.
A bench comprising Justices Ajay Rastogi and Justice JB Pardiwala allowed the appeal filed by the Union Territory of Jammu and Kashmir against the orders of the CJM and the High Court.
State of Jammu & Kashmir vs Shubam Sangra | 2022 LiveLaw (SC) 965 | CrA 1928 OF 2022
We have started gathering an impression that the leniency with which the juveniles are dealt with in the name of goal of reformation is making them more and more emboldened in indulging in such heinous crimes, the Supreme Court remarked in a judgment seting aside the orders of the Chief Judicial Magistrate, Kathua and the Jammu and Kashmir High Court which held that one of the accused in the Kathua rape-murder case was a juvenile.
MP Power Management Company Limited vs Sky Power Southeast Solar India Private Limited | 2022 LiveLaw (SC) 966 | SLP(C) 4609-4610 OF 2021
In a judgment delivered on Wednesday (16 Nov 2022), the Supreme Court explained the scope of judicial review of action by the State in a matter arising from a non- statutory contract.
The mere fact that relief is sought under a contract which is not statutory, will not entitle the State in a case by itself to ward-off scrutiny of its action or inaction under the contract, if the complaining party is able to establish that the action/ inaction is, per se, arbitrary, the bench of Justices KM Joseph and Hrishikesh Roy observed.
Varimadugu Obi Reddy vs B. Sreenivasulu | 2022 LiveLaw (SC) 967 | CA 8470 OF 2022
The Supreme Court deprecated the practice of entertaining writ petitions filed in SARFAESI matters without exhausting the alternative statutory remedy.
In this case, the Telangana High Court set aside the e-auction sale held by the Bank (secured creditor) under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 on the following grounds (1) there was an error in the description of the scheduled property in e-auction sale notice dated 25th February, 2015 and that was considered to be a serious infirmity in the process and cannot be sanctified and (2) since the auction purchase failed to deposit balance 75% of the bid amount within the stipulated time of 15 days which ought to have been deposited by him on or before 10th April, 2015, that admittedly deposited by him on 15th April, 2015, is in clear breach of Rule 9(4) of the Rules, 2002. The High Court also reversed the decision of the Debt Recovery Tribunal which had dismissed the application of borrower in this regard.
Sidram vs Divisional Manager United India Insurance Co. Ltd. | 2022 LiveLaw (SC) 968 | CA 8510 OF 2022
The Supreme Court observed that compensation for future prospects can be claimed in accident cases involving serious injuries resulting in permanent disablement.
The bench said that it has come across the opposite view taken by High Courts and Motor Accident Claims Tribunals. Such a narrow reading is illogical because it denies altogether the possibility of the living victim progressing further in life in accident cases – and admits such possibility of future prospects, in case of the victim's death, the court said.
Inspector General of Registration vs G.Madhurambal | 2022 LiveLaw (SC) 969 | SLP(C) 16949/2022
The Supreme Court upheld the Madras High Court judgment holding that a registering authority cannot demand stamp duty to keep a copy of a sale certificate on the file of Book No.1 under Section 89 of the Registration Act, 1908.
In this case, the husband of the writ petitioner before the High Court had got a sale certificate was issued in his favour. The same was forwarded to the Registeration authority for making entries in Book-I as contemplated under Section 89 of the Registration Act, 1908. Before th High Court, the writ petitioner contended that the Sale Certificate was presented before the authority only for the purpose of filing it in Book No-I as per Section 89 of the Act and thus it does not require any stamp duty and registration fees.
Sirikonda Madhava Rao vs N. Hemalatha | 2022 LiveLaw (SC) 970 | SLP(C) 14882-14883/2022
The Supreme Court observed that the objection as to admissibility of a document on the ground of sufficiency of stamp, has to raised when the document is tendered in evidence.
Thereafter, it is not open to the parties, or even the court to reexamine the order or issue, the bench of Justices Sanjiv Khanna and J K Maheshwari observed.
Pawan Kumar Goel vs State of U P | 2022 LiveLaw (SC) 971 | CrA 1999 OF 2022
The Supreme Court held that impleadment of additional accused subsequent to the filing of a cheque bounce complaint is not permissible once the limitation prescribed for taking cognizance of the offence under Section 142 of the Negotiable Instruments Act has expired.
X vs. State of Karnataka | 2022 LiveLaw (SC) 972 | CrA 1981 OF 2022
Setting aside a bail granted to a rape accused, the Supreme Court observed that the 'need of custodial trial' is not a relevant aspect while considering a bail application under Section 439 Cr.P.C.
The relevant aspects which are required to be kept in mind while considering the bail application are seriousness of the offence alleged; material collected during the investigation; statement of the prosecutrix etc., the bench of Justices MR Shah and Hima Kohli observed.
Leelamma Mathew vs Indian Overseas Bank | 2022 LiveLaw (SC) 973 | CA 7128 OF 2022
The Supreme Court observed that the bar on Civil Court jurisdiction under section 34 of the SARFAESI Act shall be applicable only in a case where the Debt Recovery Tribunal and/or Appellate Tribunal is empowered to decide the matter under the SARFAESI Act.
Vinay Prakash Singh vs Sameer Gehlaut | 2022 LiveLaw (SC) 974 | MA 1902 OF 2022
The Supreme Court observed that the benefit of Section 428 CrPC can be invoked only if detention undergone by the convict during investigation, enquiry or trial is in the 'same case'.
Section 428 CrPC provides when the period of detention undergone by the accused to be set off against the sentence or imprisonment. It reads as follows : Where an accused person has, on conviction, been sentenced to imprisonment for a term [not being imprisonment in default of payment of fine], the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
Food Corporation of India vs Abhijith Paul | 2022 LiveLaw (SC) 975 | CA 8572-8573/2022
The Supreme Court observed that scope of contractual expressions must be understood as intended by the parties to the contract.
The process of interpretation, though the exclusive domain of the Court, inheres the duty to decipher the meaning attributed to contractual terms by the parties to the contract, the bench of Justices A S Bopanna and P S Narasimha observed.
Jain P. Jose vs Santhosh | 2022 LiveLaw (SC) 979 | SLP(Crl) 5241 OF 2016
The Supreme Court reiterated that the presumption under Section 139 of Negotiable Instruments Act includes a presumption that there exists a legally enforceable debt or liability.
In this case, the Trial Court dismissed a cheque bounce complaint on the ground that the complainant was not able to adduce sufficient evidence that he was in a position to advance a loan of Rs. 9 lakhs to the accused. The Kerala High Court upheld the Trial Court order relying on a decision in John K. Abraham v. Simon C. Abraham (2014) 2 SCC 236.
Karnataka Power Transmission Corporation Limited vs JSW Energy Limited | 2022 LiveLaw (SC) 981 | CA 8714 OF 2022
The Supreme Court observed that a contract can be said to be concluded only when parties are ad idem on all the essential terms of the contract.
The three judges bench of the Apex Court observed thus while partly allowing the appeal filed by the Karnataka Power Transmission Corporation Limited against the Karnataka High Court that had set aside orders passed by the Karnataka Electricity Regulatory Commission.
TATA Power Company Limited Transmission vs Maharashtra Electricity Regulatory Commission | 2022 LiveLaw (SC) 987 | CA
In a judgment pronounced on Wednesday, the Supreme Court directed all State Electricity Regulatory Commissions to frame regulations under 181 of the Electricity Act 2003 on the terms and conditions for determination of tariff within three months.
The Court further directed that while framing these guidelines on the determination of tariff, the Commission shall follow the principles prescribed under Section 61 of the Electricity Act 2003, which also include the National Electricity policy and the National Tariff Policy. Where the State Commissions have already framed such regulations, they shall be amended to include provisions for criteria for choosing the modalities to determine the tariff, in case they are not included.
Commissioner of Income Tax - I vs Balak Capital Pvt Ltd | 2022 LiveLaw (SC) 982 | SLP(C) 7019/2017
The Supreme Court reiterated that an appeal under Section 260A of the Income Tax Act against orders of Income Tax Appellate Tribunal lies only before the High Court within whose territorial jurisdiction the assessing officer is located.
As per Section 260A of IT Act, an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the High Court is satisfied that the case involves a substantial question of law.
Period During Which The Interest Is Payable U/Sec 39(5)(a) ESI Act Cannot Be Reduced : Supreme Court
Regional Director/ Recovery Officer vs Nitinbhai Vallabhai Panchasara | 2022 LiveLaw (SC) 983 | SLP(C) 16380/2022
The Supreme Court observed that ESI Court has no authority to restrict the period during which the interest is payable under Section 39(5)(a) of Employees State Insurance Act, 1948
Section 39(5)(a) provides that if any contribution payable under this Act is not paid by the principal employer on the date on which such contribution has become due, he shall be liable to pay simple interest at the rate of twelve per cent per annum or at such higher rate as may be specified in the regulations till the date of its actual payment.
Sarita Swami vs State of Rajasthan | 2022 LiveLaw (SC) 985 | CrA 2019/2022
The Supreme Court set aside some observations made by Rajasthan High Court against a Trial Court judge who had passed a bail order.
" Such an approach which discourages the trial Courts in granting bail resulting in huge volume of litigation before the High Court and this Court.", the bench of Justices Sanjay Kishan Kaul and Abhay S. Oka said.
High Courts Are Not Subordinate ; But SC Judgments Has To Be Dealt With Due Respect : Supreme Court
Ramachandra Barathi @ Sathish Sharma V.K. vs State of Telangana | 2022 LiveLaw (SC) 986 | SLP(Crl) 10356/2022
The Supreme Court observed that its judgments have to be dealt with 'due respect' even though High Courts are not subordinate to it.
The judgments of this Court are binding on everyone under Article 141 of the Constitution of India, the bench of Justices BR Gavai and Vikram Nath observed.
Ramachandra Barathi @ Sathish Sharma V.K. vs State of Telangana | 2022 LiveLaw (SC) 986 | SLP(Crl) 10356/2022
The Supreme Court on November 21 quashed the directions passed by the Telangana High Court on November 15 which allowed the Telangana Police Special Investigation Team to proceed with the investigation in the alleged TRS MLAs poaching case under the monitoring of the High Court.
Allowing a petition filed by three accused in the case -Ramachandra Bharti, Kore Nandu Kumar and D. P. S. K. V. N. Simhayaji- the Supreme Court requested the single bench to consider the writ petition filed by them seeking the probe to be transferred to the CBI on its own merits and in accordance with the law expeditiously within a period of 4 weeks. The Court noted that the writ petition filed by the accused is pending before the single bench and is posted on November 29.
TATA Power Company Limited Transmission vs Maharashtra Electricity Regulatory Commission | 2022 LiveLaw (SC) 987 | CA | 23 Nov 2022
The Supreme Court observed that State Electricity Commissions possess full autonomy in the determination and regulation of tariff.
The State and the Central Government only have an advisory role in the regulation of tariff, the bench of CJI DY Chandrachud, Justices AS Bopanna and JB Pardiwala noted.
The court also observed that the Electricity Act do not prescribe one dominant method to determine tariff. The court rejected the contention that Tariff Based Competitive Bidding route under Section 63 is the dominant route.
Revenue Divisional Officer vs Ismail Bhai | 2022 LiveLaw (SC) 984 | CA 8727-28 OF 2022
In a relief to the land owners who are yet to get compensation for their lands acquired 40 years ago, the Supreme Court directed the authorities to pay compensation within two months.
In this case, the land was acquired for the purpose of extension of the Nehru Zoological Park in 1981. Despite taking possession, award was not passed and no amount of compensation was paid which made the land owners approach the High Court of Andhra Pradesh in 1996. The High Court directed the authority to pass an award within a period of three months. Following this, an award was passed in 1997 and a meagre compensation @ Rs. 6 per sq. yard was awarded to the land owners. Later, the Reference Court enhanced the compensation to Rs. 250 per sq. yard with solatium and interest. Thereafter, in the year 2017, appeal filed by the Revenue Department was allowed by High Court reducing the compensation to Rs. 100 /- per sq. yard.
Meenakshi Solar Power Pvt. Ltd. vs Abhyudaya Green Economic Zones Pvt. Ltd. | 2022 LiveLaw (SC) 988 | CA 8818 OF 2022
The Supreme Court reiterated that while considering an application seeking appointment of arbitration, the Court cannot go into question of novation of contract and merits of any claim involved in arbitration.
In this case, as the High Court dismissed the application filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, the applicant approached the Apex Court in appeal. The applicant's contention was that the High Court's erred in concluding that the Share Purchase Agreement was novated and superseded by the Tripartite Agreement. The respondent contended that owing to novation of share purchase agreement, the arbitration clause no longer existed so as to resolve the dispute between the parties through arbitration.
Somai v. State of Madhya Pradesh (Now Chhattisgarh) [Criminal Appeal No. 497/2022]
Once the court believes the statement of a survivor of sexual assault, it is sufficient to establish an offence punishable under Section 376 of the Indian Penal Code, 1860 and the failure of the police to send seized articles to the forensic science laboratory would not affect the outcome in such a case, held the Supreme Court in November, while confirming the conviction of a rape-accused. A Bench of Justices Sanjay Kishan Kaul and Abhay S. Oka was hearing a criminal appeal arising out of a judgement of the Chhattisgarh High Court, in which the High Court, believing the testimony of the prosecutrix, held that the guilt of the appellant had been proved beyond reasonable belief.
State of Himachal Pradesh vs Angejo Devi | 2022 LiveLaw (SC) 990 | CrA 959/2012
The Supreme Court observed that if the seized contraband is found to contain 'morphine' and 'meconic acid', it is sufficient to established that it is a 'opium poppy" as defined in Section 2(xvii) of the NDPS Act.
In this case, the Himachal Pradesh High Court had acquitted the NDPS accused by allowing their appeals on the ground that the prosecution has failed to establish that the seized material is not the genesis of a plant of Papaver somniferum L or any other plant, which is notified by the Central Government under Section 2(xvii) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The Commissioner of Income Tax v. M/s. Mansukh Dyeing and Printing Mills | 2022 LiveLaw (SC) 991
A Supreme Court bench comprising Justices M.R. Shah and M.M. Sundresh held that Section 45(4) of the Income Tax Act was applicable to not only the cases of dissolution but also cases of subsisting partners of a partnership, transferring the assets in favour of a retiring partner.
Jai Karan Yadav vs State (NCT Of Delhi) | 2022 LiveLaw (SC) 992 | CrA 2038 OF 2022
The Supreme Court set aside murder conviction of a man accused of killing his wife and modified it to conviction under Section 304 Part II IPC.
This is after the court found that the incident had occurred at the spur of the moment and the accused had taken immediate steps to shift his wife to the hospital.
Ramesh Chandra Gupta vs State of U P | 2022 LiveLaw (SC) 993 | SLP(Crl.) 39 of 2022
The Supreme Court observed that the criminal proceedings can be quashed when the complaint on the basis of which FIR was registered does not disclose any act of the accused or their participation in the commission of crime.
In this case, an FIR was lodged against the accused and a charge sheet was filed under Sections 420, 467, 468, 471, 504, 506, 448, 387 IPC. They approached the Allahabad High Court seeking quashing of the FIR/Charge Sheet. As the High Court dismissed it, they approached the Apex Court.
Mukesh Kumar vs State of Bihar | 2022 LiveLaw (SC) 995 | SLP(C) 8799/2020
The Supreme Court observed that it is the duty of Pharmacy Council and State Government to see that the hospitals/medical stores etc., are not run by the fake pharmacist and are run by the registered pharmacist only.
Running the hospitals/dispensaries in absence of any registered pharmacist and/or running such hospitals by fake pharmacist and even running the medical stores by fake pharmacist and without even any pharmacist will ultimately affect the health of the citizen, the bench of Justices MR Shah and MM Sundresh observed while it restored a Public Interest Litigation before the Patna High Court that raised this issue.
Sansera Engineering Limited vs Deputy Commissioner, Large Tax Payer Unit, Bengaluru | 2022 LiveLaw (SC) 997 | CA 8717 OF 2022
The Supreme Court held that while making claim for rebate of duty under Rule 18 of the Central Excise Rules, 2002, the period of limitation prescribed under Section 11B of the Central Excise Act, 1944 shall have to be applied and applicable.
The bench of Justices MR Shah and MM Sundresh approved the view taken by the Bombay High Court in the case of Everest Flavours Ltd. v. Union of India, 2012 (282) ELT 481 and also overruled contrary decisions of Madras High Court, Allahabad High Court, Punjab & Haryana High Court and Rajasthan High Court.
Union of India vs Subrata Nath | 2022 LiveLaw (SC) 998 | CA 7939-7940 OF 2022
The Supreme Court reiterated that the courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence.
If principles of natural justice have been violated or the statutory regulations have not been adhered to or there are malafides attributable to the Disciplinary Authority, then the courts can certainly interfere, the bench of CJI DY Chandrachud and Justice Hima Kohli said.
Himachal Pradesh State Electricity Board Ltd. vs Dharminder Singh | 2022 LiveLaw (SC) 999 | CA 8828 OF 2022
The Supreme Court observed that the cut-off date for acquiring the qualification advertised is the last date of application.
In this case, the Himachal Pradesh State Electricity Board Ltd. published advertisement on 17.07.2018 inviting application for a post. As per the advertisement, the essential qualification is metric pass and the desirable qualification is ITI diploma in wireman/Electrical trade obtained through Regular Course (not through distance education) from the institutions recognized by the Government of Himachal Pradesh or the National Trade Certificate of one year Broad Based Basic Training. The marks to be assigned for essential qualification are 60 per cent whereas the marks for desirable qualification are 25 per cent.
Istkar vs State of Uttar Pradesh | 2022 LiveLaw (SC) 1000 | CrA 2034 of 2022
The Supreme Court observed that the provisions of Chapter VIII of the Code of Criminal Procedure are merely preventive in nature and are not to be used as a 'vehicle for punishment'.
The demand of excessive and arbitrary amount of security/bond is impermissible as it stultifies the spirit of Chapter VIII of the Code, the bench of Justices Dinesh Maheshwari and Sudhanshu Dhulia said.
State of U.P. & Ors. vs. Virendra Kumar & Ors. | CIVIL APPEAL NOS. 66226623 OF 2022 | 2022 LiveLaw (SC) 1001
The Supreme Court has reiterated and held that "where an enactment requires to do a certain thing in a certain way, the thing must be done in that way and in no other manner" in the judgment of State of U.P. & Ors. vs. Virendra Kumar & Ors.
A bench of Justices Sanjay Kishan Kaul, Abhay S. Oka and Vikram Nath have delivered the judgment which has been authored by Justice Abhay S. Oka.
Amar Chand vs. State of Himachal Pradesh | C. A. No. 2035/2022 arising out of SLP (Crl.) No. 752/2019 | 2022 LiveLaw (SC) 1002
The Supreme Court recently acquitted a person, who was sentenced to 10 years imprisonment and pay Rs 1 lakh fine for the offence of possessing charas. Granting him benefit of doubt due to the lacunae and gaps in the prosecution, a bench comprising Justices Sanjiv Khanna and JK Maheshwari set aside the conviction of the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Existence Of An Alternate Remedy Cannot Exclude Writ Jurisdiction Of High Court : Supreme Court
Maharashtra State Board of Waqfs vs Shaikh Yusuf Bhai Chawla | 2022 LiveLaw (SC) 1003 | CA 7812-7814 OF 2022
The Supreme Court reiterated that the existence of an alternate remedy by itself cannot exclude the writ jurisdiction of the High Court.
"A constitutional remedy cannot be barred or excluded as when the High Court exercises its power under Article 226, it cannot be a case of lack of inherent jurisdiction.", the bench of Justices KM Joseph and Hrishikesh Roy observed while considering Maharashtra state Waqf Board's appeal against the 2011 decision of the Bombay High Court where the High Court had quashed the constitution of the Maharashtra state Board of Waqfs. The court however partly allowed the appeal filed by the Board.
CBI v. Siby Mathew SLP(Crl) 4097/ 2022, CBI vs Jayaprakash | SLP(Crl) No. 8008-8010/2021 II-B | 2022 LiveLaw (SC) 1005
The Supreme Court on Friday set aside the orders passed by the Kerala High Court in 2021 granting anticipatory bail of five former police and intelligence bureau officials in the case related to the alleged framing of ISRO scientist Nambi Narayanan in 1994 ISRO espionage case.
The Court remitted the bail applications back to the High Court and asked the High Court to decide the same as early as possible, at any rate within a period of four weeks. The Supreme Court also granted protection from arrest to the accused for a period of 5 weeks, subject to their cooperation with the investigation, as an interim arrangement till the High Court finally decides the matter.
Solomon Selvaraj vs Indrani Bhagawan Singh | 2022 LiveLaw (SC) 1004 | CA 8885 OF 2022
The Supreme Court observed that an application to sue as indigent under Order XXXIII Rule 1 of Code of Civil Procedure can be rejected if it is found that the suit is barred by res judicata.
In this case, the plaintiffs filed an application to permit them to sue as indigent persons under Order 33 rule 1 CPC. The said application was dismissed by the Trial Court on the ground that the suit is vexatious, an abuse of process of law and the court and the suit is barred by res judicata. The Madras High Court upheld this order and thus the plaintiffs approached the Apex Court in appeal.
Pramod Singh Kirar vs State of Madhya Pradesh | 2022 LiveLaw (SC) 1008 | CA 8934-8935 OF 2022
The Supreme Court directed appointment of a candidate whose candidature was rejected on the ground that he was tried for the offence under Section 498A IPC.
Pramod Singh Kirar applied for the post of Constable in the year 2013 and was found eligible to be appointed as Constable. In the verification form itself he declared that he was tried for the offence under Section 498A IPC earlier and was later acquitted in the said case. Later his candidature was rejected on the ground that he was involved in this criminal case.
