Supreme Court Digest, 1 to 15 August 2023

Supreme Court Digest 1 to 15 August, 2023

Nominal Index

Sreenivasa Reddy Vs. Rakesh Sharma & Anr.
2023 STPL(Web) 148 SC: Quashing of FIR – Sanction for prosecution

Asma Shaw Vs. Islamia College of Science & Commerce Srinagar Kashmir & Ors.
2023 STPL(Web) 150 SC: Service Law – Pay fixation

Amrish Rajnikant Kilachand Vs. Secretary General Sci
2023 STPL(Web) 170 SC : Page Limits of Petitions – Difficult for the Court to frame a ‘one size fits all’ direction

Avtar Singh & Anr. Vs. State Of Punjab
2023 STPL(Web) 130 SC : Rape – Prosecutrix version not reliable

Assistant Wild Life Warden & Anr. Vs. K. K. Moideen & Anr.
2023 STPL(Web) 159 SC : Forest – Return of goods and lorry

Commissioner Of Service Tax, Mumbai II Vs. M/S 3i Infotech Ltd.
2023 STPL(Web) 176 SC: Service tax – Error in show cause notice

Delhi Development Authority Vs. Vandana Gupta
2023 STPL(Web) 142 SC : Vicarious Liability of Directors – Not made out

Dev Gupta Vs. Pec University Of Technology & Ors.
2023 STPL(Web) 158 SC : Education – Sports quota

Devesh Sharma Vs. Union Of India And Ors.
2023 STPL(Web) 165 SC : Service Law – Qualification

E.S.I. Corporation,Rep. By The Regional Director Vs. M/S. Endocrinology Andimmunology Lab
2023 STPL(Web) 131 SC : ESI – Business of a pathological laboratory

Gulshan Bajwa Vs. Registrar, High Court of Delhi & anr.
2023 STPL(Web) 139 SC: Interim order – Delay tactics of Petitioners

Government Of Kerala & Anr. Vs. Joseph And Others
2023 STPL(Web) 156 SC: Second appeal – Substantial question of law

Haji Iqbal @ Bala Vs. State of U.P. & Ors.
2023 STPL(Web) 145 SC: Quashing of FIR – Rape

Haji Iqbal @ Bala Vs. State Of U.P. & Ors.
2023 STPL(Web) 147 SC: Quashing of FIR – Quashed

M/S. Isnar Aqua Farms Vs. United India Insurance Co. Ltd.
2023 STPL(Web) 149 SC: Insurance – Brackish Water Prawn Insurance Policy

Iqbal @ Bala & Ors. Vs. State of U.P. & Ors.
2023 STPL(Web) 154 SC : Quashing of FIR – Wreaking Vengeance

Kamal Vs. State (NCT of Delhi)
2023 STPL(Web) 144 SC : Appeal against conviction – Circumstantial evidence

Ketan Kantilal Seth Vs. State of Gujarat And Ors.
2023 STPL(Web) 135 SC : Transfer of Case – Modification/ recall of order

Kishore Balkrishna Nand Vs. State of Maharashtra & anr.
2023 STPL(Web) 140 SC: Quashing of Complaint – Defamation

Mahmood Ali & Ors. Vs. State of U.P. & Ors.
2023 STPL(Web) 153 SC: Quashing of FIR – Quashed

Mohmood Ali Vs. State Of U.P. & Ors.
2023 STPL(Web) 155 SC : Quashing of FIR – Investigation report that no offence is made out

Mohammad Wajid & Anr. Vs. State of U.P. & Ors.
2023 STPL(Web) 152 SC: Quashing of FIR – Offence u/s395 IPC

Manik B Vs. Kadapala Sreyes Reddy & Anr.
2023 STPL(Web) 174 SC : Quashing of FIR – Mini Trial not Permissible

Manoj Kumar Soni Vs. State of Madhya Pradesh
2023 STPL(Web) 167 SC : Evidence – Disclosure statements

Nirmala Devi Vs. State Of Himachal Pradesh
2023 STPL(Web) 125 SC : Murder – Nature of offence

Palanisamy Vs. State Represented By The Inspector Of Police
2023 STPL(Web) 171 SC : Counterfeit Notes – Sentence reduced

Pradyuman Bisht Vs. Union Of India & Ors.
2023 STPL(Web) 163 SC : Incidents of gunfire in court premises – Installation of CCTV cameras and other measures to ensure securit

Razia Khan Vs. State Of M.P.
2023 STPL(Web) 132 SC : Sentence – Reduction in sentence

Rahul Gandhi Vs. Purnesh Ishwarbhai Modi & Anr.
2023 STPL(Web) 136 SC: Rahul Gandhi Defamation Case – Suspension of conviction

Reepak Kansal Vs. Union Of India
2023 STPL(Web) 172 SC : Fundamental right of freedom of speech and expression – Directions for restrictions on TV Channels

Salib @ Shalu @ Salim Vs. State of U.P. & Ors.
2023 STPL(Web) 146 SC: Quashing of FIR – False Implication

State Of Punjab Vs. Paramjit Singh
2023 STPL(Web) 160 SC : Murder – Evidence not reliable

State Of Rajasthan Vs. Sharwan Kumar Kumawat Etc.
2023 STPL(Web) 126 SC : Constitutional Validity – Rules

Sunil Kumar Vs. State of U.P. & Anr.
2023 STPL(Web) 133 SC: Quashing of FIR/ proceedings – Petty offence pending from long time

State of Karnataka Lokayukta Police Vs. S. Subbegowda
2023 STPL(Web) 134 SC : Discharge – Sanction to prosecute

Sindhu Janak Nagargoje Vs. State Of Maharashtra
2023 STPL(Web) 175 SC : FIR Mandatory – If Cognizable offence disclosed in information

S.S. Cold Storage India Pvt. Ltd. Vs. National Insurance Company Limited
2023 STPL(Web) 151 SC: Insurance – Cold storage

Sathyan Vs. State of Kerala
2023 STPL(Web) 164 SC : Abkari – Testimony of official witnesses – Appeal against conviction

Union Of India & Ors. Vs. K. Pushpavanam & Ors. 
2023 STPL(Web) 166 SC: Direction to introduce bill on Torts – Order modified

Senthil Balaji Vs. State Represented By Deputy Director And Ors.
2023 STPL(Web) 143 SC : Writ of Habeas – Maintainability against forwarding of accused before Magistrate under Section 19(3) of the Act, 2002

Senthil Balaji Vs. State Represented By Deputy Director And Ors.
2023 STPL(Web) 157 SC : Writ of Habeas Corpus – Money Laundering

Wazir Khan Vs. State of Uttarakhand
2023 STPL(Web) 141 SC : Murder – Murder of wife

Yadaiah And Anr. Vs. State Of Telangana And Others
2023 STPL(Web) 129 SC : Cancelation of land – Show cause notice

Y Balaji Vs. State Represented By Commissioner Of Police
2023 STPL(Web) 168 SC : Job Scam – Extension of time for investigation

Subject Index

Civil

Constitution of India, Article 142 – Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act of 1977, Section 4 – Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli, Sections 54, 58, 58A, 166B and 166C – Laouni rules 1950, Rule 9(g) – Cancelation of land – Show cause notice – Proposing to cancel the assignment of Subject Land – Second show cause notice (SCN) – Resumption order – Second SCN held to be valid – Subject Land was nonalienable and hence was subject to the provisions of the 1977 Act – Further held that the Appellants had transferred the Subject Land in contravention to the provisions of 1977 Act and therefore, the resultant resumption order dated 27.01.2007 is valid – The Appellants are also not entitled to any compensation on account of the requisition of the assigned land – Parties have been litigating since the year 1994 – During these decades, the Subject Land has acquired enormous value – Some of the documents on record do indicate that land mafia has already ousted the gullible Assignees and now have vulture’s eyes on the land – Additionally, a security agency of paramount national importance currently occupies the Subject Land in public interest – Deem it appropriate to invoke our powers under Article 142 of the Constitution to do complete justice to the parties and issue the following further directions/declarations:

(a) The Subject Land in its entirety is declared to have vested in the State Government. On further allotment, its ownership and possessory rights, free from all encumbrances, stand transferred in favour of the Greyhounds;

(b) No Civil Court or High Court shall entertain any claim whatsoever on behalf of any Assignee, their legal representative, GPA holder or any other claimant under any Agreement to sell or other instruments, claiming direct or indirect interests in the Subject Land; and

(c) There shall be a final quietus of title and possessory dispute over the Subject Land in favour of the Respondent-+State and/or the agency to whom the said land has been allotted. (Para 75 and 76) Yadaiah And Anr. Vs. State Of Telangana And Others : 2023 STPL(Web) 129 SC

Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act of 1977, Section 4 – Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli, Sections 54, 58, 58A, 166B and 166C – Laouni rules 1950, Rule 9(g) – Show cause notice – Proposing to cancel the assignment of Subject Land – Second show cause notice (SCN) – Res judicata – Whether the proceedings emanating out of the Second SCN are barred by the doctrine of res judicata or constructive res judicata? – Order dated 21.04.2006 primarily dealt with the evocation of suo motu revisionary powers under Section 166B of the 1317 Fasli Act for issuing the First SCN and not the allegations regarding violation of assignment conditions – In fact, the First SCN was held to be bad in law and without jurisdiction because it was primarily issued on the ground of irregularity by stating that the Subject Land was erroneously assigned under the old rules and that it sought to disturb the assignment after a period of more than thirty years – This was held to be in contravention to the settled law for evoking suo motu revisionary powers under Section 166B of the 1317 Fasli Act which is the sole fundamental determination by the High Court in its order dated 21.04.2006 – Resultantly, the finding that the GPA was rendered redundant on account of the demise of M.A. Baksh was only collateral in nature and is not hit by the doctrine of res judicata – The doctrine of constructive res judicata will not be applicable in the present case for the simple reason that the issues raised in the Second SCN were never adjudicated upon in the first place – The plea that the same should have been raised in the earlier proceedings, is irrelevant in light of the liberty granted by the High Court in its order dated 21.04.2006 whereby the Revenue authorities were expressly permitted to initiate fresh proceedings for violation of assignment conditions – The Division Bench of the High Court is therefore right in holding that this liberty was not for ‘future contraventions only’ as perceived by the Single Judge in his order dated 05.02.2010, for it would render the liberty granted in order dated 21.04.2006 as obsolete – Held that in light of the liberty granted by the High Court vide order dated 21.04.2006, the Second SCN would neither constitute an abuse of process of court nor will attract the doctrine of constructive res judicata – Proceedings emanating out of the Second SCN are not barred by the doctrine of res judicata or the extended doctrine of constructive res judicata. (Para 45, 47 and 48) Yadaiah And Anr. Vs. State Of Telangana And Others : 2023 STPL(Web) 129 SC

Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act of 1977, Section 4 – Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli, Sections 54, 58, 58A, 166B and 166C – Laouni rules 1950, Rule 9(g) – Cancelation of Land – Second show cause notice – Proposing to cancel the assignment of Subject Land – Second show cause notice (SCN) – – Suo Motu revisionary power – Delay in exercise of power – Whether the exercise of suo motu revisionary powers while issuing the Second SCN is bad in law? – Appellants contended that evocating suo motu revisionary powers and issuing the Second SCN was bad in law as the same was initiated after more than 45 years when the Subject Land was initially assigned and about more than 15 years after the sale deeds were executed – Second SCN pertains to alleged violation of assignment conditions by transferring the ownership rights through sale deeds executed in the year 1992 – However, the period till 2006 could not be counted because the parties were engaged in litigation pursuant to the First SCN and it was only after the liberty was accorded by the High Court in its order dated 21.04.2006 that the Second SCN could be issued – In the facts and circumstances of this case and taking note of the chronological events the exercise of suo motu revisionary power while issuing the Second SCN was not vitiated on account of inordinate delay as claimed by the Appellants. (Para 49 and 50) Yadaiah And Anr. Vs. State Of Telangana And Others : 2023 STPL(Web) 129 SC

Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act of 1977, Section 4 – Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli, Sections 54, 58, 58A, 166B and 166C – Laouni rules 1950, Rule 9(g) – Assignment of land – Applicable law on assigned lands – What is the law governing the assignment of the Subject Land and whether the same contained any bar in respect of alienation? – Whether the subject land was assigned in the year 1953 as claimed by the Appellants or in 1961 when the Temporary Pattas were issued – Held actual assignment took place only at the time of issuance of Temporary Pattas and not at any point prior thereto – On perusal of the documents brought on record, which are merely collection of interdepartmental correspondence before the issuance of Temporary Pattas, find that the assignment process was still underway – The Appellant’s reliance on the document dated 28.10.1953 is unfounded as the same only communicated the sanction by the executive and nothing else – In fact, the letter dated 04.06.1960 brings out the fact that the area of the sanctioned land was to be reduced to 142 Acres and 39 Guntas and then only was to be assigned – Assignment took place only on 21.10.1961, i.e. when the Temporary Pattas were issued – Regulatory regime which was in vogue and held the field as on 21.10.1961 will govern the assignments – Subject Land was governed by the provision of the 1958 Circular which included the condition of non-alienability. (Para 51 to 59) Yadaiah And Anr. Vs. State Of Telangana And Others : 2023 STPL(Web) 129 SC

Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act of 1977, Section 1(3), 2(1), 2(3), 2(6), 3, 4(1)(c)(as amended by Amendment Act, 2007 retrospectively)- Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli, Sections 54, 58, 58A, 166B and 166C – Laouni rules 1950, Rule 9(g) – Assignment of land – Resumption order – Whether the assignment of Subject Land comes under the purview of 1977 Act? –Held that the retrospective application of Section 4(1)(c) of the 1977 Act upheld by the High Court – Pertinently, this Court too in Manchegowda v. State of Karnataka[Manchegowda v. State of Karnataka (1984) 3 SCC 301.] upheld the constitutional validity of retrospective application given to Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act of 1978, which is a statute whose scheme is akin to 1977 Act – These amended provisions are thus deemed to be in force at the time of violation of assignment conditions in the year 1992 – The only irresistible conclusion would thus be that the resumption order dated 27.01.2007 does not suffer from any legal infirmity. (Para 70) Yadaiah And Anr. Vs. State Of Telangana And Others : 2023 STPL(Web) 129 SC

Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act of 1977, Section 1(3), 2(1), 2(3), 2(6), 3, 4(1)(c) (as amended by Amendment Act, 2007 retrospectively)- Andhra Pradesh (Telangana Area) Land Revenue Act, 1317 Fasli, Sections 54, 58, 58A, 166B and 166C – Laouni rules 1950, Rule 9(g) – Assignment of land – Resumption order – Compensation – Whether the Appellants are entitled to any compensation on account of the resumption order dated 27.01.2007? – Words and phrases – Terms ‘acquisition’ and ‘resumption’ – Held that there is difference between the terms ‘acquisition’ and ‘resumption’ in the context of property laws – While both terms indicate deprivation of a right, there exists a significant distinction in their actual legal connotation – Acquisition denotes a positive act on behalf of the State to deprive an individual’s enjoyment of a preexisting right in a property in furtherance of its policy whereas resumption denotes a punitive action by the State to take back the right or an interest in a property which was granted by it in the first place – The term ‘resumption’ must not therefore be conflated with the term ‘acquisition’ as employed within the meaning of Article 300A of the Constitution so as to create a right to compensation – Keeping this mark distinction in view, it is not necessary to determine whether an expropriated owner has an impeachable constitutional right to compensation under Article 300A of the Constitution in lieu of his acquired property – Appellants are not entitled to any compensation under the existing constitutional framework. (Para 73 and 74) Yadaiah And Anr. Vs. State Of Telangana And Others : 2023 STPL(Web) 129 SC

Page Limits of Petitions – Difficult for the Court to frame a ‘one size fits all’ direction – If the petitioner has any concrete suggestion on the administrative side to facilitate expedition in the disposal of cases, he will be at liberty to place a representation before the Secretary General. (Para 2) Amrish Rajnikant Kilachand Vs. Secretary General Sci : 2023 STPL(Web) 170 SC

Fundamental right of freedom of speech and expression – Directions for restrictions on TV Channels – Supreme Court declines to entertain petition on following ground: . Firstly, we must note here that the prayers are too wide. Secondly, we have to also keep in mind the fundamental right of freedom of speech and expression. Thirdly, we find from the counter affidavit of the respondent Nos. 2 and 3 that a mechanism has been created to address the grievances made in the petition by constituting the respondent No.3 headed by a retired Judge of this Court. The Committee headed by a retired Judge of this Court consists of members of the Civil Society as well. Moreover, this Court is dealing with hate speeches/news items in separate petitions. (Para 1 to 3) Reepak Kansal Vs. Union Of India : 2023 STPL(Web) 172 SC

Civil Procedure Code, 1908, Section 100 – Second appeal – Substantial question of law – Held that for an appeal to be maintainable under Section 100 of the Code it must fulfil certain well established requirements – The primary and most important of them all is that the appeal should pose a substantial question of law – A perusal of the judgement impugned does not reflect any question of law, either substantial or “involving in the case” to have been framed by the Court in the Second Appeal – The Section 100, CPC jurisdiction is not akin to the jurisdiction conferred under Section 96 of CPC wherein it is open for the Court to consider both questions of fact and law – This jurisdiction is exercisable only when the Court is convinced that the dispute at hand involves a substantial question of law, and proceeding under this jurisdiction sans framing questions of such nature renders the proceedings to be “patently illegal.” – impugned judgement must be faulted with for not complying with the well-established contours of Section 100, CPC. (Para 8, 9 and 11) Government Of Kerala & Anr. Vs. Joseph And Others : 2023 STPL(Web) 156 SC

Specific Relief Act, 1963, Section 34 – Limitation Act, 1963, Article 6 and 65 – Adverse possession – Not made out – A perusal of evidence shows no decisive statements being made by PWs and instead, on the basis of the estimated age of trees on such land, is the length of possession of the respondents being calculated – Testimonies reveals that consistency is lacking in terms of the age of the rubber trees – Certain witnesses claim the age to be 15 years while others claim the same to be 18 years – No independent commission, or verification had been carried out of the age of the trees on the basis of which possession was being calculated – An estimation of age of the trees cannot be, by any stretch, termed as sufficient proof required to disturb the title that undisputedly rests with the Government as also testified by PW-1 and PW-2 – Proper and concrete proof as required would need for the claimants to show some proof of possession, other than statements which may be vague – Merely a long period of possession, does not translate into the right of adverse possession – Surmises, conjectures and approximations cannot serve the basis for taking away the right over land resting with the State and place the said bundle of rights in the hands of one who did not have any such rights – Held that the findings returned by the High Court holding the witnesses, more particularly PW1 to PW5 to have established the claimants’ claims by way of adverse possession to be erroneous. And liable to be set aside and the judgement rendered by the First Appellate Court restored. (Para 25 to 38) Government Of Kerala & Anr. Vs. Joseph And Others : 2023 STPL(Web) 156 SC

Constitution of India, Article 14 –  Education – Sports quota – Admission engineering courses – Imposition of a minimum 75% aggregate marks as an eligibility condition (in the qualifying examination) for enabling a candidate to claim admission in engineering courses under the 2% sports quota – Challenge as to – Held that objective of introducing sports quota, however, is not to accommodate academic merit, but something altogether different: promotion of sports in the institution, the university, and ultimately, in the country–Held that exclusion of the petitioner and other like candidates, on the ground of their securing less than 75% in the qualifying examination, was unwarranted and discriminatory – The reference to, and incorporation of clauses giving effect to such criterion is held unenforceable and void – Allocation for admission to all but one seat has been completed – By this court’s interim order, dated 08.08.2023, the respondent was restrained from filling the left-over seat(s) which had to be filled after the last round (of admission process) scheduled on 10.08.2023 -Directed that the remaining seat or seats shall be filled by application of the standards spelt out in the sports policy of the UT of Chandigarh, as applied by the respondent university to determine inter se sports merit of the candidates who had applied, but whose candidature was rejected on the ground of ineligibility due to their securing less than 75% marks in the qualifying examination – These candidates however should have qualified in terms of the immediately preceding academic year’s criterion, applicable for the balance sports quota seat(s) – At the same time, candidates who have been selected and given admission are concerned, shall not be disturbed – The process of filling the remaining vacant seat(s)- in the sports quota shall be completed within two weeks. (Para 17 to 19) Dev Gupta Vs. Pec University Of Technology & Ors. : 2023 STPL(Web) 158 SC

Constitution of India, Article 32, 136 – Contempt of Courts Act, 1971, Section 12 – Incidents of gunfire in court premises – Installation of CCTV cameras and other measures to ensure security – Within court premises and Audio-visual facility to record evidence and testimonies during trial – Guidelines as to security measure in the interest of justice in furtherance of the previous orders of this Court laid down – Need for digitisation of Judicial Infrastructure reiterated –Left it to the discretion of the Chief Justices of the High Courts to decide, looking at the concerns related to safety and security within Court complexes, if the matter of addressing such concerns is to be delegated to the respective State Court Management Systems Committee or to a specially constituted committee with members drawn from various quarters – Copies of this order directed to be furnished by the registry to the Registrar General of each of the High Courts for being placed before the respective Chief Justices – Further, the High Courts shall ensure that periodic monthly reports are placed before the Chief Justice regarding availability of the measures and their updated status for timely corrective intervention –  Preliminary action-taken reports on the aspect of security measures as well as digitisation in line with the aforesaid guidelines may be filed by the High Courts by 10th October, 2023. (Para 7 to 17) Pradyuman Bisht Vs. Union Of India & Ors. : 2023 STPL(Web) 163 SC

Constitution of India, Article 226 – Direction to introduce bill on Torts – Order modified – Direction by High Court to Government to consider introducing a bill, similar to which has been introduced in the year1965 viz., “Liability in Tort” bill introduced in 1965 and reintroduced1967 and got lapsed due to dissolution of Parliament during 1970, taking into account the present scenario, within a period of six months; there shall be a direction to the Central Government to take a decision with regard to the suggestion for making Law Commission either as a statutory body or constitutional body within a period of six months; respondents shall appoint a “Nodal Officer”, who is well qualified in law, in each department, to note down the Courts’ recommendations to bring to the knowledge of the Policy Makers of each department by way of periodical reports within a period of six months from the date of receipt of copy of this order, so that policy decision would be taken -Directions quashed and set aside – However, the Central Government will treat the said directions as recommendations made by the Court –  As and when the 22nd Law Commission submits the requisition for grant of funds, the Central Government will consider such requisition at the earliest considering the importance of the tasks assigned to the Law Commission – The Central Government must ensure that the Law Commission does not become ineffective on account of lack of funds – 4th direction has been already worked out with appointment of  the Chairman and Members of Law Commission of India – Impugned judgment and order  modified on above terms and the writ petition filed by the first respondent. (Para 4 and 13) Union Of India & Ors. Vs. K. Pushpavanam & Ors. :2023 STPL(Web) 166 SC

Criminal

Penal Code, 1860, Sections 302 and 201, 304 Part I, Part II – Murder – Nature of offence – Not in dispute that the relations between the deceased on one hand, and the other members of the family consisting of the appellant, wife of the deceased, his son, the original accused, and (PW-1) daughter of the deceased, on the other hand, were not cordial – Testimony of PW-1 if read as a whole, would reveal that her father and mother often quarreled – PW-1, in her evidence, has stated that the deceased fractured the leg of her mother during one of such quarrels, and a criminal case was also pending against him for the said offence – Her testimony would show that her father was residing separately in the old house whereas the three other members were residing separately – On the date of the incident, PW-1 got up at about 07.00 o’clock in the morning and asked her father to give Rs.500/- as she wanted to take part in the NCC Camp – Her father refused to provide the said amount – PW-1 narrated the said incident to her mother – Her mother asked her father to give the said amount to her – Even then, the father did not provide the said amount – Thereafter, a quarrel started between her father and mother – Her mother gave blows with a stick on the head and legs of her father – Her father sustained injuries, which led to his death – Weapon used in the crime is a stick which was lying in the house, and which, by no means, can be called a deadly weapon – Therefore, the possibility of the appellant causing the death of the deceased while being deprived of the power of self-control, due to the provocation on account of the deceased not agreeing to pay Rs.500/- to PW-1, cannot be ruled out – There used to be persistent quarrels between the deceased and the appellant – In one of such incidents, the leg of the appellant was fractured by the deceased, and a case was already pending against him for the said offence – Held that the appellant is entitled to benefit of doubt, inasmuch as the offence committed shall fall under Exception I of Section 300 IPC – Thus, the conviction under Section 302 IPC needs to be altered into Part-I of Section 304 IPC – Conviction of the appellant is altered from Section 302 of the IPC to Part-I of Section 304 of the IPC – The appellant has already been incarcerated for a period of almost 9 years – Held that the sentence already undergone would serve the ends of justice – The bail bonds of the appellant shall also stand discharged. (Para 12 to 16) Nirmala Devi Vs. State Of Himachal Pradesh :  2023 STPL(Web) 125 SC

Penal Code, 1860, Section 342 and 376(2)(g) – Rape – Prosecutrix version not reliable – Testimony of prosecution – Appeal against conviction – Appreciation of evidence – Gang rape – Prosecutrix returned home in the evening of 24.07.96, – FIR was got registered in the evening of 25.07.96 and she was taken for medical examination a day after, on 26.7.96, at 01.00 pm – Deposition of Doctor-(PW1) who examined the prosecutrix (PW4), is further belied the claim of the prosecution that she was raped repeatedly from the night of 22.07.1996 till the evening of July 24, 1996, by three different persons, firstly, in a room with no bedding and secondly, in a field of ‘Bajra’ crop with no bedsheet or anything – No external/internal injury was found on her body and even on her private parts – The doctor- (PW1) opined that the prosecutrix was well built and well-nourished was used to sexual intercourse – Held that this is not to say that the version of a victim of a sexual offence ought to be disbelieved only because she has had an active sexual life – Surrounding circumstances pointed out above, discredit the version of the prosecutrix. (Para 17) Avtar Singh & Anr. Vs. State Of Punjab : 2023 STPL(Web) 130 SC

Penal Code, 1860, Section 342 and 376(2)(g) – Rape – Testimony of prosecution – Appeal against conviction – Appreciation of evidence – Gang rape – Though, in the chemical examiner’s report, it had come that the clothes of the prosecutrix handed over to the police were having stains of semen, however, no scientific evidence was produced to link the same with the accused – This issue gains importance in the light of the fact that a part of the story sought to be projected by the prosecutrix, had already been disbelieved by the Trial Court with the acquittal of the ‘G’ – It has not been pointed out from the record, that the clothes which were handed over to the police station, belonged to the prosecutrix – More so when there are two different versions with reference to the manner of handing over the clothes of the prosecutrix to the police – There are several material discrepancies even in the statement of the mother of the prosecutrix, (PW6) who stated that after her daughter did not return back on 22.07.1996, she had informed ‘R’- (DW2), sarpanch of the village, who also made efforts to search her daughter – However, when ‘R’ appeared in court as DW-2, he completely denied this fact – Findings returned by the trial court are found to be completely perverse – It is so stated by the prosecutrix in the FIR that about 5 months back, her father had a quarrel with ‘A’ and others – To take the revenge, ‘A’, ‘G’ and ‘S’ had committed rape on her –‘G’ was acquitted by the trial court noticing the stand of the prosecutrix that there was party faction in the village and both the parties belonged to different sections – The same reasoning will apply to the appellants as well for the reason that in the FIR, the stand taken by the prosecutrix is same in respect of all the accused, as far as the allegation of party faction is concerned – Held that there was no evidence brought on record to connect the present appellants with the offence -Judgments of both the courts below liable to be set aside – The appellants are acquitted of the charges framed against them.  (Para 17 to 21) Avtar Singh & Anr. Vs. State Of Punjab : 2023 STPL(Web) 130 SC

Penal Code, 1860, Sections 333, 353 and 451 – Sentence – Reduction in sentence – Appellant visited the office of the Directorate For espousing the cause of the labourers – Appellant had sent a slip of her name to PW6which was kept on the table of PW6as she wanted to meet him – After waiting for a considerable time, as she was not allowed to meet PW6,she forced her entry to his cabin and complained that she was made to wait – PW1admitted that the appellant was not annoyed with her and did not indulge in any scuffle with her – When she tried to stop the appellant, she was pushed by the appellant and that is how she received injury to her little right finger – The incident is more than thirty years old – During the last thirty and a half years, when the trial and appeal were pending, the appellant was all through out on bail – Even in this appeal, an exemption has been granted to her from the requirement of surrendering – During this long period of more than 30 long years, there was no allegation of any objectionable activity by her – Appellant is a female whose present age is 62years – Order of conviction of the appellant by both the Courts for offences punishable under Sections 333, 353 and 451 of the IPC confirmed – For the offence punishable under Section 333 of the IPC, the appellant shall undergo simple imprisonment for one month and pay a fine of Rs.30,000/within one month – For the offence punishable under Section 451 of the IPC, the appellant shall undergo simple imprisonment for one month and to pay a fine of Rs.25,000/within a period of one month from today – Sentence for the offence punishable under Section 353 of the IPC reduced by directing the appellant to pay a fine of Rs.20,000/within a period of one month -Substantive sentences shall run concurrently – In default of payment of the fine imposed in each case, the appellant shall undergo simple imprisonment for 15 days – Out of the fine amount, a sum of Rs.25,000/- shall be paid over to the injured witness PW1by way of compensation – The rest of the fine amount shall go to the State. (Para 5 to 12) Razia Khan Vs. State Of M.P. :2023 STPL(Web) 132 SC

Criminal Procedure Code, 1973, Section 482 – Quashing of FIR/ proceedings – Petty offence pending from long time – Offence under Section 323, 504 and 506 IPC – Altercation had taken place between appellant and the respondent no. 2 in connection with some articles to be given to one consumer from the store – FIR lodged by appellant – Respondent No. 2 also lodged FIR on the next day and alleging that the appellant had assaulted, abused and also threatened to kill him in which charge sheet filed against appellant – Nature of allegations against the appellant very trivial nature – Considering the fact that there is no progress made in the proceedings since the charge sheet was filed against the appellant in the year 2015, continuing the proceedings would be a persecution and harassment to the appellant – As such a petty incident which took place in their office should have been resolved by the parties on that day itself, instead of stretching it so far – Proceedings against the appellant liable to be quashed and set aside. (Para 3 to 6) Sunil Kumar Vs. State of U.P. & Anr. : 2023 STPL(Web) 133 SC

Criminal Procedure Code, 1973, Section 227 read with 239, 465, 482- Prevention of Corruption Act, 1988, Section 13(1)(e) read with Section 13(2), Section 19(3)(4) –Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, Rule 10 – Discharge – Sanction to prosecute – Quashing petition – Discharge by High Court exercising inherent powers under Section 482 – Ground that the sanction accorded to prosecute the respondent-accused by the Government was illegal and without jurisdiction – Special Judge proceeded with the trial, on the second application for discharge filed by the respondent having not been pressed for by him – Special Judge, while dismissing the third application filed by the respondent seeking discharge after examination of 17 witnesses by the prosecution, specifically held that the sanction accorded by the government which was a superior authority to the Karnataka Water Supply Board, of which the respondent was an employee, was proper and valid – Held that such findings recorded by the Special Judge could not have been and should not have been reversed or altered by the High Court in the petition filed by the respondent challenging the said order of the Special Judge, in view of the specific bar contained in sub-section (3) of Section 19, and that too without recording any opinion as to how a failure of justice had in fact been occasioned to the respondent-accused as contemplated in the said sub-section (3) – As a matter of fact, neither the respondent had pleaded nor the High Court opined whether any failure of justice had occasioned to the respondent, on account of error if any, occurred in granting the sanction by the authority – Impugned order passed by the High Court is set aside. It will be open for the respondent to raise the issue of validity of sanction if he desires to do so, in accordance with law at the final stage of arguments in the trial. Special Judge is directed to proceed with the trial from the stage it had stopped, in accordance with the law and as expeditiously as possible. (Para 14 and 16) State of Karnataka Lokayukta Police Vs. S. Subbegowda : 2023 STPL(Web) 134 SC

Criminal Procedure Code, 1973, Section 227 read with 239, 465, 482 – Prevention of Corruption Act, 1988, Section 13(1)(e) read with Section 13(2), Section 19(3)(4) – Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957, Rule 10 – Framing of charge – Quashing petition – Discharge – An interlocutory application seeking discharge in the midst of trial would also not be maintainable – Once the cognizance was taken by the Special Judge and the charge was framed against the accused, the trial could neither have been stayed nor scuttled in the midst of it in view of Section 19(3) of the said Act – Though the issue of validity of sanction was raised at the earlier point of time, the same was not pressed for – The only stage open to the respondent-accused in that situation was to raise the said issue at the final arguments in the trial in accordance with law. (Para 15) State of Karnataka Lokayukta Police Vs. S. Subbegowda : 2023 STPL(Web) 134 SC

Supreme Court Rules, 2013, Order 12, Rule 3, Order 47 – Transfer petition –Review petition – Review Petition preferred by Respondent/Accused Nos. 20, 23, 25, 26, 30, 31, 32 and 34 – Transfer of Case – Modification/ recall of order – Prayer by State of Maharashtra – Aforesaid accused persons in support of State of Maharashtra have submitted that all of them are senior citizens aged between 65 to 85 years and they are interalia suffering from various ailments including high blood pressure, sugar, heart issues etc. – Further, they have submitted that vide order dated 09.09.2022, the cases pending against them in Amravati [as mentioned in para 1(xiv)] have also been transferred to the Court of Principal Judge, Bombay City Civil and Sessions Court, Fort, Mumbai and in view of such transfer, they may suffer irreparable hardships since they are not in a stable physical condition to travel from Amravati to Mumbai which is approximately 600 kms far and takes 10 hours one way to cover the distance. It has been further stated that all the aforesaid accused persons have delicate health conditions and therefore prayed that their cases may also be stayed from transfer and be continued before the transferor Court at Amravati itself – Held that in view of this peculiar circumstances of the instant case, it would be in the interest of justice and all stakeholders to modify the order dated 09.09.2022 to such extent as prayed herein above and transfer of the cases from Amravati concerning the aforesaid accused persons be refrained from being transferred to the transferee Court – Following order passed:

“I. The order dated 09.09.2022 passed in Transfer Petition(Criminal) Nos. 333348/2021 is hereby modified and maintained subject to –IA. Criminal proceedings relating to Respondent/Accused Nos. 20, 23, 25, 26, 30, 31,32 and 34 pending before transferor Court at Amravati, if already transferred to transferee Court, shall be returned to the transferor Court and continue at the transferor Court from the stage as received;

IB. The review petition filed by Respondent/Accused Nos. 20, 23, 25, 26, 30, 31,32 and 34 bearing Diary No. 36121/2022 and titled as ‘Ghanshyam Lahaunji Mudgal and others Vs. Ketan Kantilal Seth and others’ is dismissed as in fructuous in view of observations made in paragraph 19 herein.

II.The transfer of R.C.C. No. 147/2002 by order dated09.09.2022 passed in Transfer Petition (Criminal) Nos.333348/2021 is restrained to the transferor Court with a clarification that the trial shall proceed from the stage of final arguments by the Presiding Officer uninfluenced by the directions in para 13(e) of order dated 09.09.2022.

III. Directions issued in para 13(e) in order dated 09.09.2022be now read as under –“On receiving the cases as mentioned in para13(a), the transferee Court shall proceed in those cases from the stage of the case in which it had received from the transferor Court(s). The cases in which charges have not been framed, it shall be framed within two months and the trial shall start immediately. In cases in which charges have already been framed and evidence has been started after submitting the trial program, those cases shall proceed from that stage of trial. Meaning thereby, denovotrial in such cases from stage of framing of charge is not required. The transferee Court(s) shall conclude all the trials as expeditiously as possible within a period of two years.”

IV. Lastly, we make it clear that this Court vide order dated09.09.2022 never intended or meant to set-aside the order dated 24.06.2021 passed by Bombay High Court. It is clarified that the concerned trial Court at Nagpur shall make all the endeavor to comply with the timeline as given by Bombay High Court and decide the case in accordance with law.” (Para 18 to 21) Ketan Kantilal Seth Vs. State of Gujarat And Ors. : 2023 STPL(Web) 135 SC

Supreme Court Rules, 2013, Order 12, Rule 3 – Transfer petition – Modification/ recall of order – Prayer by intervener –Locus standi – Principles of natural justice –Held that the power of this Court under the said Rule is limited and can only be exercised sparingly with due caution while confining itself within the parameters as described only to correct clerical/arithmetical mistakes or otherwise to rectify the accidental slip or omission -Application filed by the intervenor seeking intervention in the Transfer Petition was dismissed in absence of any grounds in the application to show that intervenor had any direct or substantial nexus in the matter or that he was adversely affected by any question of law – Accordingly, it was observed that the intervenor does not have any locus to intervene– Held that the recall of the entire order as prayed for on the instance of the intervenor is not justified, in particular looking at the detailed discussion made in order dated 09.09.2022 – Simultaneously, it cannot be ignored that State of Maharashtra has filed application asking modification of the order – Therefore, in view of the aforesaid, we refrain ourselves to recall the order on insistence of the intervenor and deem it appropriate to consider the prayer of the State of Maharashtra taking note of the submissions made in this respect. (Para 12, 13 and 15) Ketan Kantilal Seth Vs. State of Gujarat And Ors. : 2023 STPL(Web) 135 SC

Criminal Procedure Code, 1973, Section 389 – Representation of the People Act, 1950, Section 8(3) – Rahul Gandhi Defamation Case – Suspension of conviction – Conviction and sentence for an offence punishable under Section 499 IPC – Held that when an offence is non-cognizable, bailable and compoundable, the least that the Trial Judge was expected to do was to give some reasons as to why, in the facts and circumstances, he found it necessary to impose the maximum sentence of two years – Though the learned Appellate Court and the learned High Court have spent voluminous pages while rejecting the application for stay of conviction, these aspects have not even been touched in their orders – Ramification of subsection(3) of Section 8 of the Act are wide-ranging – They not only affect the right of the appellant to continue in public life but also affect the right of the electorate, who have elected him, to represent their constituency – Taking into consideration the aforesaid aspects and particularly that no reasons have been given by the learned Trial Judge for imposing the maximum sentence which has the effect of incurring disqualification under Section 8(3) of the Act, the order of conviction needs to be stayed, pending hearing of the present appeal – Clarify that the pendency of the present appeal would not come in the way of the Appellate Court in proceeding further with the appeal – The appeal would be decided on its own merits, in accordance with law. (Para 6,7, 9 to 12) Rahul Gandhi Vs. Purnesh Ishwarbhai Modi & Anr. : 2023 STPL(Web) 136 SC

Interim order – Delay tactics of Petitioners – Matter pending from last sixteen years – Interim order vacated. (Para 3, 4) Gulshan Bajwa Vs. Registrar, High Court of Delhi & anr. : 2023 STPL(Web) 139 SC

Indian Penal Code, 1860 – Section 52, 499, Exception 8 – Quashing of Complaint – Defamation – Defamation suit on lodging of complaint – Trial Court recalled process – High Court reversed Trial Court order – Held: There is no defamation as such. Exception 8 to Section 499 clearly indicates that it is not a defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with regard to the subject-matter of accusation. Even otherwise by perusing the allegations made in the complaint, we are satisfied that no case for defamation has been made out. In the overall view of the matter, we are convinced that the appeal deserves to be allowed and is hereby allowed. The impugned order passed by the High Court is hereby set aside. As a consequence of the same, the original order passed by the Magistrate issuing summons, is also hereby quashed and set aside. (Para 10) Kishore Balkrishna Nand Vs. State of Maharashtra & anr. : 2023 STPL(Web) 140 SC

Indian Penal Code, 1860 – Section 302 – Indian Evidence Act, 1872 – Section 106 – Murder – Murder of wife  – Appeal against conviction – Conviction upheld on following grounds:-

1. The deceased was the wife of the appellant – Wazir Khan. It appears that the marital relations of the appellant – Wazir Khan with the deceased were strained.
2. The appellant – Wazir Khan has not disputed his presence in the house at the time of the incident. However, he has put forward a defence that robbers got into his house and killed his wife. He has also gone to the extent of saying that while his wife was being attacked by the robbers, he too suffered injuries.
3. In the aforesaid context, we may only say that there is nothing on record to indicate that the appellant – Wazir Khan had suffered any injuries. The entire defence put forward by the appellant – Wazir Khan , could be termed as false defence.
4. There were as many as 17 incised wounds on the body of the deceased.

Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show, like in the present case, that shortly before the commission of the crime they were seen together or the offence took place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not dispute his presence at home at the relevant time and does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Conviction upheld. (Para 8, 13) Wazir Khan Vs. State of Uttarakhand : 2023 STPL(Web) 141 SC

Delhi Development Act, 1957 – Section 14, 29(2) – Vicarious Liability of Directors – Not made out – Appeal against acquittal by Trial Court – Held: The finding of fact recorded by the trial court with regard to the two directors who came to be acquitted is that there was nothing on record to indicate that they were in charge of the dayto- day affairs/management of the company. It is required to be noted that it is the company as a legal entity which was sought to be prosecuted, and the directors were prosecuted by virtue of their vicarious liability under Section 32 of the Act, 1957. It appears that the two directors (respondents herein), who came to be acquitted were in a position to lead evidence to establish that they were not in day to day affairs/management of the company. In the result, the present appeal fails and is hereby dismissed. (Para 4, 5) Delhi Development Authority Vs. Vandana Gupta : 2023 STPL(Web) 142 SC

Constitution of India, Article 226 – Prevention of Money Laundering Act, 2002, Section 19, 62 – Writ of Habeas – Maintainability against forwarding of accused before Magistrate under Section 19(3) of the Act, 2002 – Held that when an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus would lie – Any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial – Any non-compliance of the mandate of Section 19 of the Act, 2002 would enure to the benefit of the person arrested – For such noncompliance, the Competent Court shall have the power to initiate action under Section 62 of the Act, 2002. (Para 88) V. Senthil Balaji Vs. State Represented By Deputy Director And Ors. : 2023 STPL(Web) 143 SC

Constitution of India, Article 226 – Prevention of Money Laundering Act, 2002, Section 19, 62 – Criminal Procedure Code, 1973, Section 167(2) – Writ of Habeas – Maintainability against forwarding of accused before Magistrate under Section 19(3) of the Act, 2002 – A writ of Habeas Corpus shall only be issued when the detention is illegal – As a matter of rule, an order of remand by a judicial officer, culminating into a judicial function cannot be challenged by way of a writ of Habeas Corpus, while it is open to the person aggrieved to seek other statutory remedies – When there is a non-compliance of the mandatory provisions along with a total non-application of mind, there may be a case for entertaining a writ of Habeas Corpus and that too by way of a challenge – In a case where the mandate of Section 167 of the CrPC, 1973 and Section 19 of the PMLA, 2002 are totally ignored by a cryptic order, a writ of Habeas Corpus may be entertained, provided a challenge is specifically made – However, an order passed by a Magistrate giving reasons for a remand can only be tested in the manner provided under the statute and not by invoking Article 226 of the Constitution of India, 1950 – There is a difference between a detention becoming illegal for not following the statutory mandate and wrong or inadequate reasons provided in a judicial order – While in the former case a writ of Habeas Corpus may be entertained, in the latter the only remedy available is to seek a relief statutorily given – In other words, a challenge to an order of remand on merit has to be made in tune with the statute, while noncompliance of a provision may entitle a party to invoke the extraordinary jurisdiction – In an arrest under Section 19 of the PMLA, 2002 a writ would lie only when a person is not produced before the Court as mandated under subsection (3), since it becomes a judicial custody thereafter and the concerned Court would be in a better position to consider due compliance – Suffice it is to state that when reasons are found, a remedy over an order of remand lies elsewhere – Similarly, no such writ would be maintainable when there is no express challenge to a remand order passed in exercise of a judicial function by a Magistrate. (Para 29 to 31) V. Senthil Balaji Vs. State Represented By Deputy Director And Ors. : 2023 STPL(Web) 143 SC

Prevention of Money Laundering Act, 2002, Section 19 – Criminal Procedure Code, 1973, Section 41, 167(2) –Remand order – Challenge as to – Held as follows:

An order of remand has to be challenged only before a higher forum as provided under the CrPC, 1973 when it depicts a due application of mind both on merit and compliance of Section 167(2) of the CrPC, 1973 read with Section 19 of the PMLA 2002.

Section 41A of the CrPC, 1973 has got no application to an arrest made under the PMLA 2002.

The maximum period of 15 days of police custody is meant to be applied to the entire period of investigation – 60 or 90 days, as a whole.

The words “such custody” occurring in Section 167(2) of the CrPC, 1973 would include not only a police custody but also that of other investigating agencies.

The word “custody” under Section 167(2) of the CrPC, 1973 shall mean actual custody.

Curtailment of 15 days of police custody by any extraneous circumstances, act of God, an order of Court not being the handy work of investigating agency would not act as a restriction.

Section 167 of the CrPC, 1973 is a bridge between liberty and investigation performing a fine balancing act. (Para 32, 33, 35 and 88) V. Senthil Balaji Vs. State Represented By Deputy Director And Ors. : 2023 STPL(Web) 143 SC

Criminal Procedure Code, 1973, Section 167(2) – Remand order – Challenge as to – Held that the decision of this Court in Anupam J. Kulkarni (supra), as followed subsequently requires reconsideration by a reference to a larger Bench – Registry directed to place the matter before Hon’ble the Chief Justice of India for appropriate orders to decide the larger issue of the actual import of Section 167(2) of the CrPC, 1973 as to whether the 15 days period of custody in favour of the police should be only within the first 15 days of remand or spanning over the entire period of investigation – 60 or 90 days, as the case may be, as a whole. (Para 88, and 91) V. Senthil Balaji Vs. State Represented By Deputy Director And Ors. : 2023 STPL(Web) 143 SC

Penal Code, 1860, Section 302/ 34 – Appeal against conviction – Circumstantial evidence – Appreciation of evidence – Test Identification Parade –Evidence of last seen – Accused are already shown to the witnesses in the Police Station – Sanctity of TIP before the court held to be doubtful – Other circumstance on which the prosecution relies are the Call Detail Records (CDRs) – The courts below have relied on the circumstance that when the incident had occurred, the identification of the CDRs of the mobile used by the accused Manoj and Kamal Kishore would show that their location was at the place of incident – One of the mobile numbers9278453468 alleged to have been used by accused Manoj is not in the name of Manoj but one Ashok Kumar, son of Shri Krishan Kumar, resident of Subhash Nagar, Kanpur – No evidence is placed on record to show as to how the said SIM came to be in possession of the accused Manoj – Apart from that, if at the time of the incident both of them were at the same place and according to the prosecution inside the house of the deceased Hoshiyar Singh, and they were talking to each other on telephone, this itself creates a doubt on the prosecution version – Held that prosecution has utterly failed to prove the case as they need to prove the incriminating circumstances beyond reasonable doubt – The evidence with regard to last seen theory is totally unreliable – The evidence regarding the CDRs also is one which does not inspire any confidence – Judgment nd order passed by the High Court and the judgment and order passed by the trial court are liable to be quashed and set aside – The appellants acquitted of all the charges levelled against them – They are directed to be set at liberty if not required in any other case. (Para 12 to 15, 20 to 22) Kamal Vs. State (NCT of Delhi) : 2023 STPL(Web) 144 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR – Rape – Quashed – Offences punishable under Sections 376-D and 506 IPC – In the entire FIR there is not a whisper of any allegation of rape or criminal intimidation against the appellant herein – All that appears on a plain reading of the FIR is that the appellant has been named as the accused No. 2 – The other co-accused persons are directly or indirectly related to the appellant – The appellant is a Vice Chancellor of the Glocal University –Court did not go into the serious allegations of political bias, etc. levelled by the learned senior counsel appearing for the appellant, but at the same time should also not overlook the fact that for some reason or the other, the appellant is being targeted – The appellant has been shown as a history sheeter – If the FIR does not disclose anything against the appellant and even at the end of the investigation, if nothing incriminating has surfaced against the appellant herein, then the continuation of the criminal proceedings against the appellant herein would be nothing but gross abuse of the process of law – So far as the other co-accused are concerned, the investigation has been completed and charge sheet has also been filed. It further appears that the trial is in progress – Held that in the absence of any particular allegation in the FIR against the appellant, the High Court should not have declined to quash the FIR by way of a cryptic order saying that the appellant has criminal antecedents and the FIR prima facie reveals commission of congnizable offences – The High Court should have first inquired as to what type of allegations have been levelled against the appellant – By just naming the appellant in the FIR, offence cannot be said to have been committed by him – If any particular role is attributed or some kind of active participation is alleged in relation to the alleged offence, then it would be a different scenario – There is something more to add to the aforesaid and the same goes to the root of the matter. Alleged act of gang rape of 2018, the FIR came to be lodged sometime in the year 2022 i.e. after almost a period of four years – Do not propose to say anything in regard to delay in lodging the FIR as the trial against the other accused persons is in progress – The Trial Court on its own will examine this aspect – Though, rape causes the greatest distress and humiliation to the victim yet at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well – The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved no case is made out to put the appellant herein to trial for the alleged offence – There is nothing to indicate that the appellant as one of the accused persons had committed the offence as alleged – All that has been stated in the counter affidavit is that the appellant is a hardened criminal and against him multiple FIRs have been registered over a period of time for different offences – Impugned order passed by the High Court liable to be set aside – The criminal proceedings arising from FIR liable to be quashed so far as the appellant is concerned. (Para 12, 13, 15 to 17) Haji Iqbal @ Bala Vs. State of U.P. & Ors.: 2023 STPL(Web) 145 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR – Wreaking Vengeance – Petition for – Inherent power – Exercise of – Held that whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely – Once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings – The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence – Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not – In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines – The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation – Multiple FIRs have been registered over a period of time – It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged. (Para 14) Haji Iqbal @ Bala Vs. State of U.P. & Ors.: 2023 STPL(Web) 145 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR – False Implication – Offence punishable under Section 506 IPC – Appellant has not been named in the FIR as one of the accused persons – There is no allegation worth the name in the entire FIR against the appellant herein – Further statement of the first informant was recorded under Section 161 Cr.P.C. and in the said statement, the name of the appellant surfaced – With the recording of the further statement referred to above, the investigating agency added Sections 147, 148, 149, 195A, 385 and 504 of the IPC – It appears from the aforesaid that the first informant in her further statement made out altogether a different story than what she narrated in the FIR – Attending circumstances emerging from the record of the case indicates that the case on hand is one of false implication – Just because the appellant herein happens to be the son-in-law of a very hardened criminal as alleged by name Iqbal @ Bala, he has also been roped in by way of further statement – Victim in her FIR has not even remotely referred to the presence of Salman s/o Latife at village Mirzapur Paul – Entire case was fabricated step by step. (Para 10, 12 and 14) Salib @ Shalu @ Salim Vs. State of U.P. & Ors. : 2023 STPL(Web) 146 SC

Criminal Procedure Code, 1973, Section 195A, 482 – Constitution of India, Article 226 – Quashing of FIR – Offence punishable under Section 195A – Threatening any person to give false evidence – Allegation in the FIR that the accused persons threatened and pressurised the first informant to withdraw her first FIR bearing No. 122 of 2022 registered for the offences punishable under Sections 376D, 323, 120B, 354A and 452 IPC – There is nothing to indicate that the accused persons threatened the first informant with intent that the first informant gives false evidence before the Court of law – The latter part of Section 195A makes it very clear that false evidence means false evidence before the Court of law – On such false evidence if a person is convicted and sentenced, then the person found guilty of administering threats would be liable to be punished with the same punishment and sentence in the same manner and to the same extent as such innocent person is punished and sentenced – The word “false” in Section 195A should be read in the context with what has been explained in Section 191 of the IPC which falls in Chapter XI – of False Evidence and Offences Against Public Justice – Thus, even if we believe the allegations levelled in the FIR to be true, none of the ingredients to constitute the offence punishable under Section 195A are disclosed – To give threat to a person to withdraw a complaint or FIR or settle the dispute would not attract Section 195A of the IPC. (Para 16) Salib @ Shalu @ Salim Vs. State of U.P. & Ors. : 2023 STPL(Web) 146 SC

Criminal Procedure Code, 1973, Section 195A – Criminal Procedure – Procedure for witnesses in case of threatening, etc.- The plain reading of the aforesaid provision indicates that if a witness or any other person receives threats and such threats are administered with an intent to cause that person to give false evidence before the Court, then such witness or person can file a complaint in relation to the offence under Section 195A of the IPC – It goes without saying that such complaint has to be lodged before the Court recording the evidence – Section 195A of the CrPC provides a remedy of filing a complaint. “Complaint” means as defined under Section 2(d) of the CrPC. (Para 17 and 18) Salib @ Shalu @ Salim Vs. State of U.P. & Ors. : 2023 STPL(Web) 146 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR – Offence punishable under Section 386, 383 – Extortion by putting a person in fear of death or grievous hurt – Extortion – One of the necessary ingredients of the offence of extortion is that the victim must be induced to deliver to any person any property or valuable security, etc. – That is to say, the delivery of the property must be with consent which has been obtained by putting the person in fear of any injury – In contrast to theft, in extortion there is an element of consent, of course, obtained by putting the victim in fear of injury – In extortion, the will of the victim has to be overpowered by putting him or her in fear of injury – Forcibly taking any property will not come under this definition – It has to be shown that the person was induced to part with the property by putting him in fear of injury – Nowhere the first informant has stated that out of fear, she paid Rs. 10 Lakh to the accused persons – To put it in other words, there is nothing to indicate that there was actual delivery of possession of property (money) by the person put in fear – In the absence of anything to even remotely suggest that the first informant parted with a particular amount after being put to fear of any injury, no offence under Section 386 of the IPC can be said to have been made out. (Para 23 and 24) Salib @ Shalu @ Salim Vs. State of U.P. & Ors. : 2023 STPL(Web) 146 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR – Wreaking Vengeance – Inherent power – Exercise of – Held that whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely – Once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings – The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence – Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not – In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines – The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation – Multiple FIRs have been registered over a period of time – It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged. (Para 26) Salib @ Shalu @ Salim Vs. State of U.P. & Ors. : 2023 STPL(Web) 146 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR – Quashed – Offences punishable under Sections 395, 386, 365, 342 and 506 IPC – Held that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence of dacoity punishable under Section 395 of the IPC is made out – In the same manner, none of the ingredients to constitute the offence punishable under Section 365, 342 and 506 IPC are disclosed on plain reading of the FIR – The FIR is nothing but abuse of the process of law – FIR came to be lodged after a period of almost two years from the alleged incident of so-called dacoity, kidnapping, extortion, etc – The incident is shown to be of the year 2021 and the FIR relating to the same came to be lodged in the year 2023 and that too, without specifying any date and time of the alleged incident. – The entire case put up by the first informant on the face of it appears to be concocted and fabricated – Case of the appellant falls within the parameters Nos. 1, 5 and 7 respectively of Bhajan Lal case -Impugned order passed by the High Court liable to be set aside – The criminal proceedings arising from FIR liable to be quashed. (Para 10 to 12, 14 and 17) Haji Iqbal @ Bala Vs. State Of U.P. & Ors. : 2023 STPL(Web) 147 SC

Criminal Procedure Code, 1973, Section 197, 482 – Quashing of FIR – Sanction for prosecution – Offence punishable under Sections 120-B r/w 420, 468 and 471 IPC- Sanction for prosecution – Whether the appellant, serving in his capacity as an Assistant General Manager, State Bank of India, Overseas Bank, is removable from his office save by or with the sanction of the Government so as to make Section 197 of the CrPC applicable? – Although a person working in a Nationalised Bank is a public servant, yet the provisions of Section 197 of the CrPC would not be attracted at all as Section 197 is attracted only in cases where the public servant is such who is not removable from his service save by or with the sanction of the Government – It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the Government – Held that even if it is alleged that the appellant herein is a public servant, still the provisions of Section 197 of the CrPC are not attracted at all. (Para 45 and 49) A. Sreenivasa Reddy Vs. Rakesh Sharma & Anr.: 2023 STPL(Web) 148 SC

Criminal Procedure Code, 1973, Section 197, 482 – Prevention of Corruption Act, 1988, Section 19- Quashing of FIR – Corruption & IPC offences – Offence punishable under Sections 120-B r/w 420, 468 and 471 IPC- Sanction for prosecution – Is it permissible for the Special Court (CBI) to proceed against the appellant for the offences punishable under the IPC despite the fact that the sanction under Section 19 of the PC Act, 1988 to prosecute the appellant for the offences under the PC Act, 1988, is not on record as the same came to be declined? – Sanction contemplated under Section 197 of the CrPC concerns a public servant who “is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” whereas, the offences contemplated in the PC Act, 1988 are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties – The offences under the IPC and offences under the PC Act, 1988 are different and distinct – What is important to consider is whether the offences for one reason or the other punishable under the IPC are also required to be approved in relation to the offences punishable under the PC Act, 1988 – It is important to draw a distinction between an order of sanction required for prosecuting a person for commission of an offence under the IPC and an order of sanction required for commission of an offence under the PC Act, 1988 – Held that although in the present case, the appellant has been discharged from the offences punishable under the PC Act, 1988 yet for the IPC offences, he can be proceeded further in accordance with law. (Para 53 to 55) A. Sreenivasa Reddy Vs. Rakesh Sharma & Anr.: 2023 STPL(Web) 148 SC

Criminal Procedure Code, 1973, Section 197– Prevention of Corruption Act, 1988, Section 19- Sanction for prosecution – Held that there can be no thumb rule that in a prosecution before the court of Special Judge, the previous sanction under Section 19 of the PC Act, 1988 would invariably be the only pre-requisite – If the offences on the charge of which, the public servant is expected to be put on trial include the offences other than those punishable under the PC Act, 1988 that is to say under the general law (i.e. IPC), the court is bound to examine, at the time of cognizance and also, if necessary, at subsequent stages (as the case progresses) as to whether there is a necessity of sanction under Section 197 of the CrPC – There is a material difference between the statutory requirements of Section 19 of the PC Act, 1988 on one hand, and Section 197 of the CrPC, on the other – In the prosecution for the offences exclusively under the PC Act, 1988, sanction is mandatory qua the public servant – In cases under the general penal law against the public servant, the necessity (or otherwise) of sanction under Section 197 of the CrPC depends on the factual aspects – The test in the latter case is of the “nexus” between the act of commission or omission and the official duty of the public servant – To commit an offence punishable under law can never be a part of the official duty of a public servant – It is too simplistic an approach to adopt and to reject the necessity of sanction under Section 197 of the CrPC on such reasoning – The “safe and sure test”, is to ascertain if the omission or neglect to commit the act complained of would have made the public servant answerable for the charge of dereliction of his official duty – He may have acted “in excess of his duty”, but if there is a “reasonable connection” between the impugned act and the performance of the official duty, the protective umbrella of Section 197 of the CrPC cannot be denied, so long as the discharge of official duty is not used as a cloak for illicit acts. (Para 59) A. Sreenivasa Reddy Vs. Rakesh Sharma & Anr.: 2023 STPL(Web) 148 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR– Offence u/s395 IPC – Whether even if the entire case of the prosecution is believed to be true, whether the ingredients to constitute the offence of dacoity punishable under Section 395 of the IPC are disclosed? – Incident alleged to have occurred at the house of the appellant No. 2 – It is the first informant and his brother who are said to have visited one fine day the house of the appellant No. 2 – At that point of time, the other co-accused are also shown to be present – There is no good or plausible explanation coming from the first informant as to why he was carrying Rs. 2 Lakh in his pocket – The entire case put up by the first informant appears to be fabricated -Assuming for the time being that the first informant was in fact carrying Rs. 2 Lakh in his pocket and at the time of alleged incident, the amount was forcibly taken away by the accused persons, whether this taking away of Rs. 2 Lakh from the pocket of the first informant would fall within the ambit of the words “for that end” occurring in Section 390 of the IPC – The answer is an emphatic “No” – Even according to the first informant, the dispute was one relating to the agricultural land – The first informant says that he is the lawful owner of the land in question, whereas, according to him, the accused persons are wrongly claiming to be the lawful owners of the land – With a view to settle this dispute, the first informant and his brother are said to have visited the house of the appellant No. 2 on their own free will and volition – It is only after reaching the house of the appellant No. 2 that the entire incident is alleged to have occurred – The provisions of any criminal statute are to be construed and interpreted strictly – Held that Section 395 of the IPC is not applicable to the case on hand. (Para 18 and 22) Mohammad Wajid & Anr. Vs. State of U.P. & Ors. : 2023 STPL(Web) 152 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR – Offence under Sections 504 and 506(2) IPC – Whether any case of criminal intimidation punishable under Sections 504 and 506(2) of the IPC is made out? – In the FIR, all that the first informant has stated is that abusive language was used by the accused persons – What exactly was uttered in the form of abuses is not stated in the FIR – One of the essential elements constituting an offence under Section 504 of the IPC is that there should have been an act or conduct amounting to intentional insult – Where that act is the use of the abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to intentional insult – In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present – However, the entire case put up by the first informant on the face of it appears to be concocted and fabricated – Present case falls within the parameters Nos. 1, 5 and 7 respectively referred to in the case of Bhajan Lal. (Para 28 and 29) Mohammad Wajid & Anr. Vs. State of U.P. & Ors. : 2023 STPL(Web) 152 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR – Delay in lodging FIR – Offences punishable under Sections 395, 504, 506 and 323 – Whether the allegations levelled in the FIR inspire any confidence considering the fact that the FIR was lodged in the year 2022 for the alleged offence of the year 2021 and more particularly, without furnishing any details as regards the date and time of the alleged incident? – Held that delay in the registration of the FIR, by itself, cannot be a ground for quashing of the FIR – However, delay with other attending circumstances emerging from the record of the case rendering the entire case put up by the prosecution inherently improbable, may at times become a good ground to quash the FIR and consequential proceedings – If the FIR, like the one in the case on hand, is lodged after a period of more than one year without disclosing the date and time of the alleged incident and further without any plausible and convincing explanation for such delay, then how is the accused expected to defend himself in the trial – It is altogether different to say that in a given case, in the course of investigation the investigating agency may be able to ascertain the date and time of the incident, etc. – The recovery of few incriminating articles may also at times lend credence to the allegations levelled in the FIR – However, in the absence of all such materials merely on the basis of vague and general allegations levelled in the FIR, the accused cannot be put to trial – Held that the continuation of the criminal case arising from the FIR will be nothing but abuse of the process of the law – In the peculiar facts and circumstances of this case the impugned order passed by the High Court liable to be set aside – The criminal proceedings arising from FIR quashed. (Para 33 to 36) Mohammad Wajid & Anr. Vs. State of U.P. & Ors. : 2023 STPL(Web) 152 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR – Quashed – Offences punishable under Sections 420, 467, 468, 471, 342, 386, 504 and 506 IPC – Held that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence as alleged are disclosed – FIR in question came to be lodged after a period of 14 years from the alleged illegal acts of the appellants – In the FIR no specific date or time of the alleged offences has been disclosed – The entire case put up by the first informant on the face of it appears to be concocted and fabricated – Case of the present appellants falls within the parameters Nos. 1, 5 and 7 respectively in the case of Bhajan Lal – Impugned order passed by the High Court liable to be set aside – The criminal proceedings arising from FIR quashed. (Para 10, 11 and 14 ) Mahmood Ali & Ors. Vs. State of U.P. & Ors. : 2023 STPL(Web) 153 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR – Wreaking Vengeance – Inherent power – Exercise of – Held that whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely – Once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings – The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence – Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not – In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines – The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation – Multiple FIRs have been registered over a period of time – It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged. (Para 12) Mahmood Ali & Ors. Vs. State of U.P. & Ors. : 2023 STPL(Web) 153 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR – Offences punishable under Sections 376, 323 and 354(A) IPC – Victim has not furnished any information in regard to the date and time of the commission of the alleged offence – Investigation has been completed and charge sheet is ready to be filed – Although the allegations levelled in the FIR do not inspire any confidence more particularly in the absence of any specific date, time, etc. of the alleged offences, yet the appellants should prefer discharge application before the Trial Court under Section 227 as the investigation is over and charge sheet is ready to be filed before the competent court – In such circumstances, the Trial Court should be allowed to look into the materials which the investigation officer might have collected forming part of the charge sheet – If any such discharge application is filed, the Trial Court shall look into the materials and take a call whether any case for discharge is made out or not – No final opinion expressed as regards the truthfulness of the allegations levelled in the FIR – Appeal disposed of with liberty to the appellants to prefer discharge application under Section 227 of the Cr.P.C. before the Trial Court. (Para 8, 9 and 11) Iqbal @ Bala & Ors. Vs. State of U.P. & Ors. : 2023 STPL(Web) 154 SC

Criminal Procedure Code, 1973, Section 482 – Constitution of India, Article 226 – Quashing of FIR – Wreaking Vengeance – Inherent power – Exercise of – Held that whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely – Once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings – The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence – Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not – In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines – The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation – Multiple FIRs have been registered over a period of time – It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged. (Para 10) Iqbal @ Bala & Ors. Vs. State of U.P. & Ors. : 2023 STPL(Web) 154 SC

Indian Penal Code, 1860 – Section sections 420, 406, 506 – Quashing of FIR – Investigation report that no offence is made out – Accepted by Trial Court – Held: Nothing more requires to be adjudicated upon in the present matter. (Para 5) Mohmood Ali Vs. State Of U.P. & Ors. : 2023 STPL(Web) 155 SC

Indian Penal Code, 1860 – Section 302 – Murder – Evidence not reliable – Unnatural Conduct of Witness – Held: It has come in the evidence of PW-7 that after the incident, the witness did not complain to the police. Moreover, he knew a close relative of the deceased Surjan Singh who was available on phone. However, PW-7 did not inform him. – Though the prosecution case is that the statement of PW-7 was recorded on 23rd December, 1998 when he reached the spot around 12 noon in the afternoon, PW-9 ASI Baldev Singh who was at the site has not stated that he recorded the statement of PW-7. Moreover, the respondent was not immediately arrested.  Acquittal valid (Para 5, 6) State Of Punjab Vs. Paramjit Singh: 2023 STPL(Web) 160 SC

Indian Penal Code, 1860 – Section 302 – Evidence – Extra Judicial Confession to stranger – Held: The prosecution story of the respondent-accused confessing after so many days to a stranger is very doubtful and does not inspire confidence. (Para 7) State Of Punjab Vs. Paramjit Singh: 2023 STPL(Web) 160 SC

Job Scam – Extension of time for investigation – Objection by original appellant on ground that there have been deliberate slackness on the part of the Investigation Agency to complete the investigation and submit the report and, therefore, a Special Investigation Team needs to be constituted. Extension granted with warning that in case of failure SIT will be constituted (Para 4, 6) Y Balaji Vs. State Represented By Commissioner Of Police : 2023 STPL(Web) 168 SC

Indian Penal Code, 1860 – Section 489C, 120C – Counterfeit Notes – Sentence reduced – Sentence of seven years by Trial Court, reduced to five years by High Court – Petitioner was found to be in possession of 43 counterfeit notes of denomination of Rs.10. He was a vegetable vendor. The main accused is A3. There is no previous conviction rendered against him and no case is pending. Held: Considering the aforesaid aspects, we are inclined to modify the sentence to the one already undergone while retaining the conviction. Ordered accordingly. (Para 3, 4) Palanisamy Vs. State Represented By The Inspector Of Police : 2023 STPL(Web) 171 SC

Code of Criminal Procedure, Section 482 – Quashing of FIR – Mini Trial not Permissible – Petition against High Court order of quashing FIR – Held: High Court while exercising jurisdiction under Section 482 Cr.P.C., has almost conducted a mini trial and quashed the proceedings. At the stage of deciding an application under Section 482 Cr.P.C., it is not permissible for the High Court to go into the correctness or otherwise of the material placed by the prosecution in the chargesheet. The High Court by the impugned order has done exactly the same. Such an exercise, in our considered view, is not permissible while exercising the jurisdiction under Section 482 Cr.P.C. High Court order quashed and set aside. (Para 4, 7, 9) Manik B Vs. Kadapala Sreyes Reddy & Anr. : 2023 STPL(Web) 174 SC

Code of Criminal Procedure, 1973 – Section 154 – FIR Mandatory – If Cognizable offence disclosed in information – Petition against High Court order of dismissal of the writ petition filed by the appellant, seeking directions to register the offence as per the complaints of the appellant that the deceased Shivaji Bangar, brother of the appellant was severely beaten and brutally assaulted by the accused on and he succumbed to injuries – Held: We are of the opinion that the registration of FIR is mandatory under Section 154 of CrPC, if the information discloses commission of cognizable offence. In the instant case, the complaints submitted by the appellant to the concerned respondents did disclose the commission of cognizable offence and also the names of the alleged offenders. In that view of the matter, we allow the present appeal and direct that the concerned respondents shall proceed further with the complaints filed by the appellant in accordance with law. (Para 3, 4) Sindhu Janak Nagargoje Vs. State Of Maharashtra : 2023 STPL(Web) 175 SC

Constitution of India, Article 226 – Prevention of Money Laundering Act, 2002, Section 19, 62 – Writ of Habeas – Maintainability against forwarding of accused before Magistrate under Section 19(3) of the Act, 2002 – Held that when an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus would lie – Any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial – Any non-compliance of the mandate of Section 19 of the Act, 2002 would enure to the benefit of the person arrested – For such noncompliance, the Competent Court shall have the power to initiate action under Section 62 of the Act, 2002. (Para 88) V. Senthil Balaji Vs. State Represented By Deputy Director And Ors. : 2023 STPL(Web) 157 SC

Constitution of India, Article 226 – Prevention of Money Laundering Act, 2002, Section 19, 62 – Criminal Procedure Code, 1973, Section 167(2) – Writ of Habeas Corpus – Money Laundering – Maintainability against forwarding of accused before Magistrate under Section 19(3) of the Act, 2002 – A writ of Habeas Corpus shall only be issued when the detention is illegal – As a matter of rule, an order of remand by a judicial officer, culminating into a judicial function cannot be challenged by way of a writ of Habeas Corpus, while it is open to the person aggrieved to seek other statutory remedies – When there is a non-compliance of the mandatory provisions along with a total non-application of mind, there may be a case for entertaining a writ of Habeas Corpus and that too by way of a challenge – In a case where the mandate of Section 167 of the CrPC, 1973 and Section 19 of the PMLA, 2002 are totally ignored by a cryptic order, a writ of Habeas Corpus may be entertained, provided a challenge is specifically made – However, an order passed by a Magistrate giving reasons for a remand can only be tested in the manner provided under the statute and not by invoking Article 226 of the Constitution of India, 1950 – There is a difference between a detention becoming illegal for not following the statutory mandate and wrong or inadequate reasons provided in a judicial order – While in the former case a writ of Habeas Corpus may be entertained, in the latter the only remedy available is to seek a relief statutorily given – In other words, a challenge to an order of remand on merit has to be made in tune with the statute, while noncompliance of a provision may entitle a party to invoke the extraordinary jurisdiction – In an arrest under Section 19 of the PMLA, 2002 a writ would lie only when a person is not produced before the Court as mandated under subsection (3), since it becomes a judicial custody thereafter and the concerned Court would be in a better position to consider due compliance – Suffice it is to state that when reasons are found, a remedy over an order of remand lies elsewhere – Similarly, no such writ would be maintainable when there is no express challenge to a remand order passed in exercise of a judicial function by a Magistrate. (Para 29 to 31) V. Senthil Balaji Vs. State Represented By Deputy Director And Ors. : 2023 STPL(Web) 157 SC

Prevention of Money Laundering Act, 2002, Section 19 – Criminal Procedure Code, 1973, Section 41, 167(2) – Money Laundering – Remand order – Challenge as to – Held as follows:

An order of remand has to be challenged only before a higher forum as provided under the CrPC, 1973 when it depicts a due application of mind both on merit and compliance of Section 167(2) of the CrPC, 1973 read with Section 19 of the PMLA 2002.

Section 41A of the CrPC, 1973 has got no application to an arrest made under the PMLA 2002.

The maximum period of 15 days of police custody is meant to be applied to the entire period of investigation – 60 or 90 days, as a whole.

The words “such custody” occurring in Section 167(2) of the CrPC, 1973 would include not only a police custody but also that of other investigating agencies.

The word “custody” under Section 167(2) of the CrPC, 1973 shall mean actual custody.

Curtailment of 15 days of police custody by any extraneous circumstances, act of God, an order of Court not being the handy work of investigating agency would not act as a restriction.

Section 167 of the CrPC, 1973 is a bridge between liberty and investigation performing a fine balancing act. (Para 32, 33, 35 and 88) V. Senthil Balaji Vs. State Represented By Deputy Director And Ors. : 2023 STPL(Web) 157 SC

Criminal Procedure Code, 1973, Section 167(2) – Criminal Procedure – Remand order – Challenge as to – Held that the decision of this Court in Anupam J. Kulkarni (supra), as followed subsequently requires reconsideration by a reference to a larger Bench – Registry directed to place the matter before Hon’ble the Chief Justice of India for appropriate orders to decide the larger issue of the actual import of Section 167(2) of the CrPC, 1973 as to whether the 15 days period of custody in favour of the police should be only within the first 15 days of remand or spanning over the entire period of investigation – 60 or 90 days, as the case may be, as a whole. (Para 88, and 91) V. Senthil Balaji Vs. State Represented By Deputy Director And Ors. : 2023 STPL(Web) 157 SC

Kerala Forest Act, 1961, Section 61D – Forest – Return of goods and lorry – Illicit transport of forest produce – Both were seized to be confiscated – In revision High Court directed that the rosewood logs and lorry  be returned to the petitioners – Neither the lorry nor the rosewood logs are available as both have been sold by the state and the amount is lying with the exchequer, hence cannot be returned back, if order passed by the High Court is upheld – This fact was not brought to the notice of the High Court  at that stage in terms of which the relief as was granted by the High Court could not possibly be granted – Matter remitted back to the High Court for examination afresh – In case the arguments raised by the respondents are accepted, they will be entitled to receive the amount collected by the state on the sale of rosewood logs and the lorry –  High Court would also examine the desirability of awarding interest thereon from the date the amount, on account of sale of lorry and rosewood logs, was credited in the state exchequer. (Para 7 to 10) Assistant Wild Life Warden & Anr. Vs. K. K. Moideen & Anr. : 2023 STPL(Web) 159 SC

Abkari Act, Section 8 – Abkari – Testimony of official witnesses – Appeal against conviction – Submission made by the learned counsel for the Appellant  that the fairness of the investigation was compromised since the person who detected the crime and the person who investigated, were one and the same and investigation is biased repelled – Nothing has been put forward to show that there may be a reasonable ground for the presence of bias or that there may be “a real danger of bias” and therefore the bald plea of the investigation not been fair, judicious does not support the case of the Appellant – If the evidence of such a police officer is found to be reliable, trustworthy then basing the conviction thereupon, cannot be questioned, and the same shall stand on firm ground  – No reason is forthcoming on behalf of the Appellant to challenge the veracity of the testimonies of PW – 1 and PW – 2, which the courts below have found absolutely to be inspiring in confidence – Therefore, basing the conviction on the basis of testimony of the police witnesses as undertaken by the trial court and is confirmed by the High Court vide the impugned judgement, cannot be faulted with. (Para 20, 21 and 22) Sathyan Vs. State of Kerala : 2023 STPL(Web) 164 SC

Abkari Act, Section 8 – Constitution of India, Article 21 – Delay of nearly 3 years in filing the challan –Fair trial – Reduction in sentence – Held that it has been time and again observed that a “fair trial”, is a right flowing from Article 21 of the Constitution of India and it encompasses all stages of trial including that of “investigation, inquiry, trial, appeal, revision and the trial – Contraband substance was recovered immediately, only a few witnesses were examined, and even if systemic delays on account of transfer of personnel is considered, daytime elapsed between the date of the offence and the submission of the final report cannot be justified –  However, mere urging that delay casts a suspicion on the investigation, without any evidence being led in furtherance thereof, cannot be sustained – Inordinate delay has been taken as presumptive proof of prejudice, but in particular cases where the accused is in custody – Record reveals that the accused was released on bail on 21st October 2003. -Hence, the presumption of prejudice will not apply in the instant facts – Considering the facts that the offence in question is dated 1st October 2003; the final report after delayed investigation was submitted on 17th April 2006, he was convicted on 3rd November 2008, and that more than 20 years have passed since the commission of the offence, the sentence of the Appellant from one year of imprisonment and a fine of one lakh rupees modified to serve a period of three months, simple imprisonment – The fine as awarded by the trial court and as upheld by the High Court,  confirmed –  Considering the economic status, the period of time to deposit the fine by the Appellant, as awarded,  extended by a period of one year. (Para 29 to 34) Sathyan Vs. State of Kerala : 2023 STPL(Web) 164 SC

Penal Code, 1860, Section 411 – Evidence Act, 1872, Section 27 –Evidence – Disclosure statements – Disclosure statements under Section 27 that provided information must be directly relevant to the discovered fact, including details about the physical object, its place of origin, and the accused person’s awareness of these aspects – Courts have hesitated to place reliance solely on disclosure statements of co-accused and used them merely to support the conviction or to “lend assurance to other evidence against a co-accused – There is not a single iota of evidence except the disclosure statements of Manoj and the co-accused, which supposedly led the I.O. to the recovery of the stolen articles from Manoj and Rs.3,000.00 from Kallu – Admissibility and credibility are two distinct aspects and the latter is really a matter of evaluation of other available evidence – The statements of police witnesses would have been acceptable, had they supported the prosecution case, and if any other credible evidence were brought on record – While the recoveries made by the I.O. under Section 27, Evidence Act upon the disclosure statements by Manoj, Kallu and the other co-accused could be held to have led to discovery of facts and may be admissible, the same cannot be held to be credible in view of the other evidence available on record – Testimony of the seizure witnesses is the only thread in the present case that could tie together the loose garland, and without it, the very seizure of stolen property stands falsified – All four independent seizure witnesses (PWs 5, 6, 11, and 16), who were allegedly present during the seizure/recovery of the stolen articles from Manoj’s house, having turned hostile and not support the prosecution case, the standalone evidence of the I.O. on seizure cannot be deemed either conclusive or convincing; the recoveries made by him under Section 27, Evidence Act must, therefore, be rejected. (Para 25, 26 and 28) Manoj Kumar Soni Vs. State of Madhya Pradesh :2023 STPL(Web) 167 SC

Penal Code, 1860, Section 411 – Evidence Act, 1872, Section 27 – Evidence – Disclosure statements – Material inconsistency – Appeal against conviction – In Kallu’s case is the contradiction in the depositions of the I.O. and the complainant – The I.O. deposed that he, upon the disclosure by co-accused Jaihind, successfully recovered a sum of Rs. 3,000.00 (comprised of three one-thousand-rupee notes), seized the same in the presence of witnesses, and prepared a seizure panchnama; however, when one looks at the complainant’s version, it is wholly inconsistent – She stated in her deposition that the accused persons did not take away any one-thousand-rupee note from her house – Conviction of Kallu entirely hinges on the alleged recovery of Rs. 3,000.00 and both the courts below heavily relied on this aspect to convict him of criminal conspiracy – Although there could be evidence aliunde to establish the guilt of the co-accused Jaihind, Arif and Suleman, there was absolutely no evidence worthy of consideration which could have been relied on to convict Manoj and Kallu – Held that the sole connecting evidence against Manoj and Kallu was the recovery based on their disclosure statements, along with those of the other co-accused but this evidence is not sufficient to qualify as “fact … discovered” within the meaning of Section 27 – Having regard to such nature of evidence, the same held to be as wholly untrustworthy. (Para 29 and 30) Manoj Kumar Soni Vs. State of Madhya Pradesh :2023 STPL(Web) 167 SC

Criminal Procedure Code, 1860, Section 313 – Penal Code, 1860, Section 411 – Statement of accused – Presumption – The manner in which the Trial Court framed questions for answer by Manoj left a lot to be desired – Exposition of law by this Court in multiple decisions on Section 313, Cr.PC, wherein trial courts have been cautioned against recording statements in a casual and cursory manner reiterated – What holds importance is not the mere quantity of questions posed to the accused but rather the content and manner in which they are framed – Trial Court treated this process as an empty formality – None of the material circumstances forming the basis of his conviction were put to him – Not even a single question regarding the stolen articles was posed to him – Instead, irrelevant and abstract questions about the main incident of robbery that took place were asked, even though his alleged involvement occurred much later when the robbed items were allegedly sold to him by the co-accused – The prosecution’s entire case is premised on the disclosure statements made by the co-accused, but Manoj was never given the opportunity to explain the circumstances. (Para 31 and 32) Manoj Kumar Soni Vs. State of Madhya Pradesh :2023 STPL(Web) 167 SC

Penal Code, 1860, Section 411 – Evidence Act, 1872, Section 27, Explanation (a) to Section 114 – Dishonestly receiving stolen property – Disclosure statement – Presumption – Manoj’s conviction, solely relying on the disclosure statements made by himself and the other co-accused, does not suffice to warrant a presumption under Section 411, IPC – It would not be unreasonable to presume that a goldsmith, who has to deal in ornaments and jewelleries on a day-to-day basis, would obviously be in possession of a significant quantity of ornaments at his shop – Given the circumstances, such a presumption drawn under Section 114(a) stands vitiated – Even if we assume the veracity of the claim that the items sold to Manoj were indeed stolen articles, it would not be sufficient to attract Section 411, IPC; what was further necessary to be proved is continued retention of such articles with a dishonest intent and knowledge or belief that the items were stolen – No evidence worthy of consideration was adduced by the prosecution to prove that Manoj had retained the articles either with dishonest intent and with knowledge or belief of the same being stolen property – Conviction liable to be set aside. (Para 33 to 37) Manoj Kumar Soni Vs. State of Madhya Pradesh :2023 STPL(Web) 167 SC

Penal Code, 1860, Section 120B – Criminal conspiracy – only one accused convicted – Among all five accused persons, only Kallu has been convicted for criminal conspiracy under Section 120-B, IPC – Held that one person alone can never be held guilty of criminal conspiracy because one can not conspire with oneself – Wordings of Section 120-A, IPC make it abundantly clear—the offence of criminal conspiracy is committed only when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means – conviction of Kallu as recorded by the Trial Court and the sentence imposed upon them, since affirmed by the High Court, stand set aside. (Para 38 and 44) Manoj Kumar Soni Vs. State of Madhya Pradesh :2023 STPL(Web) 167 SC

Constitution Law

Rajasthan Minor Mineral Concession. Rules 1986, Rule 4(1), 7(3) (as amended in 2011 and 2013) – Validity of Rule 4(10), 7(3) – Constitutional Validity – Rules – Challenge to the decision of High Court declaring sub-rule (10) of Rule 4 and sub-rule (3) of Rule 7 of the Rules, 1986 as unconstitutional – Vested right – Legitimate expectation – Held that a mere filing of an application ipso facto does not create any right – The power of the Government to amend, being an independent one, pending applications do not come in the way – For a right to be vested there has to be a statutory recognition – Such a right has to accrue and any decision will have to create the resultant injury – When a decision is taken by a competent authority in public interest by evolving a better process such as auction, a right, if any, to an applicant seeking lease over a Government land evaporates on its own – An applicant cannot have an exclusive right in seeking a grant of license of a mineral unless facilitated accordingly by a statute – Legitimate expectation is a weak and sober right as ordained by a statute – When the Government decides to introduce fair play by way of auction facilitating all eligible persons to contest on equal terms, certainly one cannot contend that he is entitled for a lease merely on the basis of a pending application – The right being not legal, apart from being non-existent, it can certainly not be enforceable – Decisions of the High Court rendered earlier do not stand in the way of the impugned amendments – They were with respect to sandstone alone, while in the impugned judgment the High Court applied it to all the minor minerals – In the decision rendered by the High Court dated 13.03.2013 all the applications were directed to be considered as per the amended Rules – In fact, the reasoning of the High Court in the impugned order is contrary to the earlier order passed – The impugned Rules have been introduced in exercise of the power conferred under Section 15 of the 1957 Act -There is neither a right nor it gets vested through an application made over a Government land – Law does not facilitate hearing the parties in bringing an amendment by an authority competent to do so – High Court has totally misconstrued the issues ignoring the fact that there is a delegation of power to the first appellant which was rightly exercised as conferred under Section 15 of the 1957 Act – Impugned judgments of the High Court liable to be set aside. (Para 17, 19, 22 and 23) State Of Rajasthan Vs. Sharwan Kumar Kumawat Etc. : 2023 STPL(Web) 126 SC

Consumer Law

Consumer Protection Act, 1986, Section 2(1)(g) and 14(1)(d) – Insurance – Brackish Water Prawn Insurance Policy – Insurance claim – Repudiation – Deficiency in service –Compensation – Surveyors reports – Quantifying the insurance amount payable to the appellant, in terms of the three methodologies stated in the terms of Insurance Policy – Second surveyors report quantifying the appellant’s loss at Rs. 17,64,097/- – Repudiation of the appellant’s claim in its entirety, basing on the wholly unfounded assertion that the appellant had failed to maintain and provide proper records despite the clear finding of its earlier surveyors that total loss was suffered by the appellant -Death Certificate furnished by the officials of the State Fisheries Department brushed aside by respondent – Held that it is not open to an insurance company to ignore or fail to act upon a certificate or document that it had itself called for from independent and impartial authorities merely because it is averse to it or to its detriment – Having undertaken to indemnify an insured against possible loss in specified situations, an insurance company is expected to make good on its promise in a bonafide and fair manner and not just care for and cater to its own profits – Computations made by the appellant and recorded by the NCDRC in the order under challenge, viz, Rs. 75,98,361/-(as per Input Cost Method) and Rs. 75,87,750/-(as per Unit Cost Method) are found to be accurate, in terms of the figures mentioned in the Death Certificate – As per the Fortnightly Valuation Method, the loss would work out to Rs. 79,20,000/- – Admittedly, the appellant would be entitled to the lowest of the aforestated three valuations, viz., Rs. 75,87,750/- – As the respondent company would have already paid the appellant the amount quantified by the NCDRC in the impugned order, viz., Rs. 30,69,486.80, the appellant would be entitled to receive the balance amount of Rs. 45,18,263.20 – – The delay on the part of the insurance company in settling the appellant’s claim fairly and in a timely manner warrants that it pays interest on the amount due and payable to the appellant in terms of this order – The sum of Rs. 45,18,263.20 shall be remitted by the respondent insurance company to the appellant, with simple interest thereon @ 10% from the date of the complaint till the date of realization. (Para 13 to 16) M/S. Isnar Aqua Farms Vs. United India Insurance Co. Ltd. : 2023 STPL(Web) 149 SC

Insurance law – Fundamental principle – Held it is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties; that good faith forbids either party from non-disclosure of the facts which the party knows; and that the insured has a duty to disclose and similarly it is the duty of the insurance company to disclose all material facts within their knowledge since the obligation of good faith applies to both equally – This obligation and duty would rest on both parties not only at the inception of the contract of insurance but throughout its existence and even thereafter. (Para 12) : M/S. Isnar Aqua Farms Vs. United India Insurance Co. Ltd. : 2023 STPL(Web) 149 SC

Consumer Protection Act, 1986, Section 2(1)(g) and 14(1)(d) – Insurance – Cold storage – Repudiation of Claim – Deficiency in service – Surveyors report – Whether the NCDRC was justified in rejecting the Complaint of the Appellant holding that there is no deficiency of service on the part of the Respondent? – Surveyor identified the cause for the leak as wear and tear, without delving deep into the matter as to whether the pipes that were used were likely to develop such wear and tear within 7 and 5 years of their installation in the two Chambers – There was nothing in the report to suggest that the Appellant had failed to maintain the Facility satisfactorily for inferring wear and tear – Held that there was absence of material resting whereon it could be pointed out by the Surveyor that even a normal and gradual wear and tear by passage of time resulted in the cracks developing on the surface of the pipes – Absence of consideration of relevant factors is, therefore, writ large on the Surveyor’s Report – The reports of the Loss Assessor and the Experts dwelled on general aspects of scientific observations relating to the absence of friction or movement when ammonia passes through the pipes and its alkalinity (non-acidic nature) not being corrosive to the pipes as well as the manufacturing details, and specifications of the pipes, which are conspicuous by their absence in the Surveyor’s report – It seems, all relevant factors were not considered in the proper perspective by the Surveyor, yet, such Surveyor’s Report was relied on by the Respondent to defeat the claim of the Appellant -Held that the report having recorded the ipse dixit of the Surveyor, without any reference to the aforesaid aspects touched upon by the Loss Assessor and the Experts, the same is, in our opinion, not worthy of acceptance. (Para 29 and 30) S.S. Cold Storage India Pvt. Ltd. Vs. National Insurance Company Limited : 2023 STPL(Web) 151 SC

Consumer Protection Act, 1986, Section 2(1)(g) and 14(1)(d) , Section 22(1) read with Section 13(4)(iv) – Insurance – Exclusionary clause – Cold storage – Refrigeration policy – Repudiation – Deficiency in service – Expert opinion – The observation of the NCDRC that the pipes used in the Chambers were not seamless and had welding joints was apparently made to discard the reports of the Loss Assessor and the Experts – The Loss Assessor and the Experts had opined that the pipes were seamless – Held that if at all the NCDRC had reason not to rely on the reports of the Loss Assessor and the Experts with regard to the make, quality, thickness, and other features of the C Class Pipes, instead of relying on its opinion based on a visual impression of the pipes, it ought to have ordered an examination of the same by an independent expert in exercise of power conferred on it by Section 22(1) read with Section 13(4)(iv) of the Act – Although the said power is to be sparingly used, this was a fit and proper case calling for exercise of the power -NCDRC made observations in the impugned judgment as if its members were experts in the relevant field and clothed with authority to sit in appeal over the same – Considering all these factors and the attending circumstances and by applying the standard of proof of preponderance of probabilities, we feel inclined to lean in favour of the inference that the version of the Appellant, was more probable, i.e., that the leak of ammonia gas was not occasioned due to wear and tear (as claimed by the Respondent) but was the outcome of an accident which was not foreseen and beyond its control and not covered by any of the exceptions in the Refrigeration Policy (Exception Clause 3) so as to entitle the Respondent to claim immunity for the ultimate purpose of repudiating the insurance claim lodged by the Appellant – NCDRC committed serious error by not giving the reports placed on record by the Appellant the extent of credence the same deserved – Repudiation of the insurance claim by the Respondent, on facts and in the circumstances, is held to amount to deficiency in service on its part – Impugned judgment and order of the NCDRC, on merits, is indefensible and that there has indeed been a deficiency of service at the end of the Respondent – Ends of justice would be sufficiently served by granting to the Appellant a lumpsum amount of Rs. 2,25,00,000/- towards full and final settlement of the insurance claim. (Para 31 to 35) S.S. Cold Storage India Pvt. Ltd. Vs. National Insurance Company Limited : 2023 STPL(Web) 151 SC

Labour Law

Employees’ State Insurance Act, 1948, Sections 1(5), 14 (AA), 75 and 77 – Factories Act, 1948, Section 2(k) – ESI – Business of a pathological laboratory – Whether covered under the Act, 1948 and from which date – it can safely be concluded that the establishment of the respondent will not be covered under the provisions of Section 1(4) of the Act as it will not fall within the definition of a “factory”, since no manufacturing process is carried on therein- There is a Notification issued on 06.09.2007 by the Government of Kerala covering medical institutions including pathological laboratories from that date – The aforesaid Notification was issued in consultation with the Corporation and with the approval of the Central Government – Held that If the pathological laboratories were already covered under the Act, as is sought to be urged by the Corporation, there was no occasion to issue such a notification – This fact clearly establishes that even as per the understanding of the Corporation, pathological laboratories were not covered under the Act prior to that date – High Court held that the provisions of the Act, 1948 will be applicable to the respondent establishment w.e.f. 06.09.2007 and not from 22.11.2002 – Held that do not find any merit in this appeal and the same liable to be dismissed. (Para 13 to 16) E.S.I. Corporation,Rep. By The Regional Director Vs. M/S. Endocrinology Andimmunology Lab : 2023 STPL(Web) 131 SC

Service Law

Jammu & Kashmir Civil Service Regulations, Article 77D – Service Law – Pay fixation – Direct recruits – Pay protection in service candidate appointed on tenure basis – Whether the appellant was holding a post in Academic Staff College on adhoc basis or was working against a leave/suspension or any other short-term vacancy? – There is a difference between a tenure post and an appointment made on a regular post on a tenure basis – The advertisement mentions that the post is nota tenure post but the appointment to that post will be made on a tenure basis – In the order of appointment issued by the 6th respondent, it is specifically mentioned that the appellant was appointed as a Lecturer in the Academic Staff College in the pay scale of Rs.8000-275-13500on tenure basis – In fact, the qualifications for the post of reader/lecturer in Academic Staff Colleges clearly lay down that the appointment to the post of director, reader and lecturer will be on tenure basis for a period of five years with a provision for continuation on these posts on assessment of the incumbent concerned subject to the condition that incumbent will retire after completing the age of 62 years – Held that the appointment of the appellant with the Academic Staff College of the 6th respondent was not against a short-term vacancy – The appellant was not holding the post of Lecturer in Academic Staff College on ad hoc basis and was not working against leave/suspension vacancy – Therefore, the exception carved out by the third proviso to Article 77Dwill not apply as the appointment of the appellant was on a substantive post on a tenure basis with a provision to continue the same till the age of 62 years – The advertisement published by the 1strespondent specifically permitted in service candidates to apply by sending their applications through the respective appointing authorities – Accordingly, the Assistant Registrar of the 6th respondent University forwarded the application of the appellant to the 2nd respondent – It is specifically stated in the said letter that the appellant was working on a tenure basis – Accordingly, by the order dated 16th June 2005, the appellant was appointed on the establishment of the 1strespondent on probation for a period of two years – Thus, this is a case of a government servant taking employment in another service or cadre – Entire approach of the Division Bench held to be erroneous when it came to the conclusion that the appellant was not appointed on a substantive basis and, therefore, she does not satisfy the criteria laid down by Article 77D – Division Bench has completely ignored that the only exception carved out to Article 77Dwas in respect of a government servant holding a post on ad hoc basis or working against leave/suspension or any other short term vacancy – Hence, the case of the appellant was not covered by the said exception carved out to the third proviso by Article77D – Impugned decision of the Division Bench cannot be sustained and the decision of the learned Single Judge which directs that pay protection should be given to the appellant, needs to be restored. (Para 9 to 14) Asma Shaw Vs. Islamia College of Science & Commerce Srinagar Kashmir & Ors.: 2023 STPL(Web) 150 SC

Constitution of India, Article 21A – Right to Education Act, 2009, Section 23(1) – National Council for Teacher Education Act, Section 12A, 29 – Service Law – Qualification – Recruitment – Posts of primary school teachers (Level-1) – Rajasthan Teacher Eligibility Test (RTET Level-) – Educational qualification – Equivalence of qualification – Challenge to the advertisement issued an advertisement on 11.01.2021, for Rajasthan Teacher Eligibility Test (RTET Level-1), and it excluded B.Ed. degree holders from the list of eligible candidates – Ground that advertisement is violation of Notification dated 28.06.2018, issued by the National Council for Teacher Education which made B.Ed. degree holders eligible for appointment to the post of primary school teachers (classes I to V) – High Court in the impugned judgment has quashed the notification dated 28.06.2018, holding B.Ed. candidates to be unqualified for the posts of primary school teachers (Level-1)– Held thatB.Ed. is not a qualification for teachers at Primary level of schooling – The pedagogical skills and training required from a teacher at Primary level is not expected from a B.Ed. trained teacher – They are trained to teach classes at higher level, post primary, secondary and above – For Primary level i.e. class I to class V the training is D.El.Ed or what is known as diploma in elementary education – It is a D.El.Ed. training course which is designed and structured to impart skills in a teacher who is to teach Primary level of students – Therefore, by implication the inclusion of B.Ed. as a qualification amounts to lowering down of the ‘quality’ of education at Primary level – ‘Quality’ of education which was such an important component of the entire elementary education movement in this country – The inherent pedagogical weakness in B.Ed. courses (for primary classes), is well recognised, and it is for this reason that in the impugned notification itself it is provided that B.Ed. trained teachers will have to undergo a six months training in elementary classes, within the first two years of their appointment -Decision of the NCTE to include B.Ed. as a qualification for teachers in a primary school seems arbitrary, unreasonable and in fact has no nexus with the object sought to be achieved by the Act i.e. Right to Education Act, which is to give to children not only free and compulsory but also ‘quality’ education – NCTE was not justified in including B.Ed. as a qualification for appointment to the post of primary school teacher (Level-1), a qualification it had so far consciously kept out of the eligibility requirement – High Court by way of the Impugned Judgement had rightly struck down the notification dated 28.06.2018 (Para 27, 29, 33, 34) Devesh Sharma Vs. Union Of India And Ors. : 2023 STPL(Web) 165 SC

National Council for Teacher Education Act, Section 12A, 29 – Constitution of India, Article 21A – Right to Education Act, 2009, Section 23(1) – Service Law – Policy decision – Recruitment – Posts of primary school teachers (Level-1) – Policy decision – Notification dated 28.06.2018, issued by the National Council for Teacher Education which made B.Ed. degree holders eligible for appointment to the post of primary school teachers (classes I to V) – Submission that the Central Government in any case is the final authority in deciding as to what qualification has to be there for teachers and the NCTE is bound to follow the directions of the Central Government in this regard in view of the provisions of Section 12A and Section 29 (NCTE Act) –Held that policy decisions of the Government should normally not be interfered with, by a constitutional Court in exercise of its powers of judicial review – At the same time if the policy decision itself is contrary to the law and is arbitrary and irrational, powers of judicial review must be exercised – A policy decision which is totally arbitrary; contrary to the law, or a decision which has been taken without proper application of mind, or in total disregard of relevant factors is liable to be interfered with, as that also is the mandate of law and the Constitution – Impugned Judgement of the High Court striking down the notification dated 28.06.2018 upheld. (Para 35 to 37) Devesh Sharma Vs. Union Of India And Ors. : 2023 STPL(Web) 165 SC

Taxation

Finance Act, 1994, Section 65(105)(zzr), 65(53a), Section65(105)(zzzze), 73 – Service tax – Error in show cause notice – Demand for service tax under the Taxable service of “Management, Maintenance and Repair – Rest of the three notices contain a demand under classifiable service “Information Technology Software” on account of services provided by the assessee in respect of the supply of third party software, software developed in house or customised software – The assessee had temporarily transferred the right to use the said software to their clients – Prior to 16th May 2008, such service was classifiable under the category of “Intellectual Property Service” and with effect from 16th May 2008, it was classifiable under the category of ‘Information Technology Software” – In fact, the management, maintenance and repair services of computer hardware as well as software under the annual maintenance contract was covered by the category of “Management, Maintenance or Repair” services which was defined under Section 65(64) of the Finance Act – Held that the classification mentioned in the first show cause notice was completely erroneous – CESTAT was right in holding that the first show cause was illegal – Elementary principles of natural justice required that the adjudication on the basis of show cause notice should be made only on the basis of classification stated in the show cause notice – Assessee cannot be subjected to a penalty on the basis of a show cause notice containing a completely erroneous category of service – Demand made on the basis of the first show cause notice was illegal – Find no merit in the appeal preferred by Revenue. (Para 10) Commissioner Of Service Tax, Mumbai Ii Vs. M/S 3i Infotech Ltd. : 2023 STPL(Web) 176 SC

SEZ Act, Section 26(1)(e), 26(2), 51(1) – Finance Act, 1994, Section 65(105)(zzr), 65(53a), Section 65(105) (zzzze), 73 – Service tax – Exemption notification – Applicability – Argument on behalf of assessee-appellant that an exemption was available to the assessee under SEZ Act in respect of services supplied to SEZ units – Finding by CESTAT appellant has not produced any evidence to show that the services provided by them or only or partly consumed within the SEZ or outside – Thus, there is no dispute about the fact that said exemption are not available to the appellant during the relevant period in terms of Notification No. 9/2009ST substituted by Notification 172011ST wherein one of the conditions specified was that the exemption shall be provided by way of refund of service tax – Since Commissioner has not considered the matter on this aspect CESTAT remanded back the matter for consideration of the exemption in respect of services supplied to SEZ unit/developer – Held that cannot find fault with the reasoning adopted by CESTAT – However, in the proceedings pursuant to remand, it will be open for the assessee to show that an exemption was available under subsection (2) of Section 26 of the SEZ Act – It was held by CESTAT that octroi charges are in the nature of levy for transportation of goods – Therefore, octroi charges cannot be a part of the value of the taxable services – However, a remand was ordered to enable the assessee to produce evidence regarding the amounts paid towards octroi charges – Except for aforesaid clarification, no other interference is called for. (Para 11 to 14) Commissioner Of Service Tax, Mumbai Ii Vs. M/S 3i Infotech Ltd. : 2023 STPL(Web) 176 SC

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