Supreme Court Digest, 15 to 30 September 2023

Stpl law

October 4, 2023
12:13 pm

Supreme Court Digest, 15 to 30 September 2023

Nominal Index

Appaiya Vs. Andimuthu@ Thangapandi & Ors.
2023 STPL(Web) 273 SC: Second appeal – Concurrent findings of fact

Balwinder Singh (Binda) Vs. The Narcotics Control Bureau
2023 STPL(Web) 285 SC: NDPS – Confessional statement to NCB officer

Batliboi Environmental Engineers Limited Vs. Hindustan Petroleum Corporation Limited And Another
2023 STPL(Web) 283 SC: Arbitration – Challenge to award

M/S Bajaj Alliance General Insurance Co Ltd. Vs. Rambha Devi & Ors.
2023 STPL(Web) 293 SC: MACT – Light motor vehicle

Celir Llp Vs. Bafna Motors (Mumbai) Pvt. Ltd. & Ors
2023 STPL(Web) 276 SC: Writ jurisdiction – Alternative remedy

First Global Stockbroking Pvt. Ltd. & Ors Vs. Anil Rishiraj & Anr
2023 STPL(Web) 281 SC: FERA – Issuance of process

Hemavathi & Ors. Vs. V. Hombegowda & Anr.
2023 STPL(Web) 292 SC: Second appeal – Substantial question of law

Joseph Vs. State Of Kerala And Others
2023 STPL(Web) 288 SC: Premature lease –Prayer for

Jamboo Bhandari Vs. M.P. State Industrial Development Corporation Ltd. And Others
2023 STPL(Web) 294 SC: Dishonour of Cheque – Suspension of sentence

Kotak Mahindra Bank Limited Vs. Commissioner Of Income Tax Bangalore And Anr.
2023 STPL(Web) 296 SC: Income Tax – Claimed depreciation

Meena Pradhan & Ors Vs. Kamla Pradhan & Anr
2023 STPL(Web) 282 SC: Will – Proof of execution

Sarangapani (Dead) Through Lr Paka Saroja Vs. State Of Andhra Pradesh
2023 STPL(Web) 280 SC: Bribery case – Presumption

Peoples Union For Civil Liberties And Another Vs. State Of Maharashtra And Others
2023 STPL(Web) 290 SC: Police encounters – Procedure to be followed by the police in investigating

Panchayat Qureshian And Another Vs. State Of Rajasthan And Others
2023 STPL(Web) 291 SC: Permanent Lok Adalat directing closure of the slaughter house – Jurisdiction

M/S Paul Rubber Industries Private Limited Vs. Amit Chand Mitra & Anr.
2023 STPL(Web) 295 SC: Unregistered deed of lease – Legality of notice to quit and vacate the premises

Raghavendran Vs. C. Raja John & Ors.
2023 STPL(Web) 289 SC: Corporate Insolvency Resolution Process – Appellant is the Resolution Professional

Rajesh & Anr Vs. State Of Madhya Pradesh
2023 STPL(Web) 277 SC: Circumstantial evidence – Appreciation of evidence

Samir Kumar Majumder Vs. The Union Of India & Ors.
2023 STPL(Web) 274 SC: Service Law – Absorption

Sunil Vs. State Of Nct Of Delhi
2023 STPL(Web) 278 SC: Common attention – Murder

Sudesh Kumar Goyal Vs. The State Of Haryana & Ors
2023 STPL(Web) 279 SC: Service Law – Direct quota recruitment Higher Judicial Service

Shirdi Nagar Panchayat Vs. Kishor Sharad Borawake And Others
2023 STPL(Web) 284 SC: Development Control Regulations – Conversion of land

Sweety Kumari Vs. The State Of Bihar And Others
2023 STPL(Web) 286 SC: Service Law – Rejection of candidature

Suresh Lataruji Ramteke Vs. Sau. Sumanbai Pandurang Petkar And Others
2023 STPL(Web) 287 SC: Second appeal – Substantial question of law

The State Of Madhya Pradesh And Others Vs. Bhupendra Yadav
2023 STPL(Web) 275 SC: Service Law – Unfit for appointment

Subject Index

Arbitration

Arbitration and Conciliation Act, 1996, Section 31(3), 34 and 37 – Arbitration – Challenge to award – Award dated 23.03.1999 dismisses the counter claim of HPCL for liquidated damages of Rs.57.40 lakhs, on the ground that the delay was caused by omissions and commissions of HPCL – Claims by HPCL for rectification/rehabilitation cost of Rs.102.05 lakhs, costs of balance work of Rs.160 lakhs and de-watering cost of Rs.9 lakhs were denied on the ground that they relate to future works and therefore, would not fall within the ambit of arbitration in question – Held that the first egregious and obvious flaw in the award is, the omnibus finding and conclusion that HPCL was fully responsible for the inordinate delay that had occurred by not taking proper and timely action in removal of various impediments and obstacles that stood in the way of completing the project within the stipulated period of 18 months – This finding is bereft of analysis and examination of facts and contentions – The relevant and material facts and the respective stances of the parties are neither decipherable nor evaluated and no reason has been given for arriving at the conclusion – A conclusion without any discussion and reasons, is non-compliant and violates the mandate of sub – section (3) of Section 31 of the A& C Act. (Para 6 and 7) Batliboi Environmental Engineers Limited Vs. Hindustan Petroleum Corporation Limited And Another: 2023 STPL(Web) 283 SC

Arbitration and Conciliation Act, 1996, Section 31(3), 34 and 37 – Arbitration award – Challenge as to – Computation and award of 10% of the contract value towards loss of overheads and another 10% towards loss of profits/profitability – The two amounts have been quantified at Rs.78,68,833/- each – Thus, Rs.1,57,37,666/- has been awarded and held as payable by HPCL to BEEL – The award is deficient being completely silent as to the method and the manner in which the arbitral tribunal has computed the figures – Hudson’s method should be taken as the basis for computation with caution and as a last resort, where no other way to compute damages is feasible or mathematically accurate – Inaccuracies in Hudson’s computation should not be overlooked, and should be accounted and neutralized – Hudson’s formula when applied should be with full care and caution not to over-award the damages – Arbitral tribunal in the present case has given complete go by to these principles well in place, overlooked care and caution required and taken a one-sided view grossly and abnormally inflated the damages – The figures quoted show the overstatement and aggrandizement in awarding Rs. 1,57,37,666/-, towards loss of overheads and loss of profits/profitability, in a contract of Rs. 5,74,35,213/-. Rs.1,21,95,859.68/- was paid for the work done within the term. Rs. 2,92,07,619.13 was paid for the work done post the term – Thus, Rs. 4,14,03,478.81/- was paid for 80% of the work – The balance was Rs.1,14,87,042.00/ – The amount awarded towards loss of overheads and profits/profitability is Rs.1,57,37,666/- – No justification for computation of the loss is elucidated or can be expounded – Even if one were to rely upon the chart given by the BEEL, and ignore the contradictions in findings, the amount awarded is highly disproportionate and exorbitant – It is clearly a case of overlapping or at least a part doubling of the loss/damages – The arbitral tribunal has accepted that principle of mitigation is applicable but observes that the only way BEEL could have abased the loss, was to work on Sundays or holidays – This reasoning is again ex facie fallacious and wrong – The principle of mitigation with regard to overhead expenses does not mandate working on Sundays or holidays – Claim No.2 for idle machinery and equipment – This was on account of extended period of contract – This claim of more than Rs.84,00,000/- has been accepted for Rs.12,00,000/-, by simply stating that the learned arbitrator had inspected the site and, in his opinion, there is substance in the claim – Inspection of the site was post the appointment of the arbitrator after August 1997, whereas BEEL had abandoned the contract more than a year ago in March 1996 – The amount awarded is merely on ipsi dixit without giving any reasons and basis for awarding the amount – Award has been rightly held to be unsustainable and set aside by the division bench of the High Court exercising power and jurisdiction under Section 37 read with Section 34 of the A & C Act. (Para 8, 26 to 29 and 45) Batliboi Environmental Engineers Limited Vs. Hindustan Petroleum Corporation Limited And Another: 2023 STPL(Web) 283 SC

Civil

Civil Procedure Code, 1908, Section 100 – Evidence Act, 1872, Section 65, 74,77,79 – Second appeal – Concurrent findings of fact – Secondary evidence – Certified copy of sale deed – A certified copy of Exhibit A1 sale deed dated 27.08.1928 was produced by the appellant – Courts below found that it is registered with the Sub-Registrar’s Office – Contention of respondent(s) that it is only a certified copy and not the original document – Held that as per Section 77 of the Evidence Act such certified copies may be produced in proof of the contents of the public document concerned – Section 79 deals with presumption as to genuineness of certified copies – Ext.A1 is found as genuine and as one legally admissible for the purpose of proving the contents of the original sale deed and one transferring the title to the extent covered thereunder to ‘P’ who is the vendor of the appellant/plaintiff – In the absence of any proven document conferring a better title to the respondent/defendant, as held by the courts below, there was no reason to reverse the concurrent findings of the courts below- Trial Court found that defendant(s) did not produce any document proving that the defendant had any right over the suit property prior to the mortgage of the property effected by ‘P’ in the year 1959 under Ext.B2 – Trial Court, therefore, rightly held that the oral and documentary evidence of the appellant/plaintiff clearly established that till 1959 the suit property belonged to ‘P’ and thereafter, the appellant/plaintiff purchased the property from ‘P’ as per Ext.A5, in the circumstances mentioned thereunder – Since Ext.A5 legally establishes the contents of the original sale deed the same should confer the right over the entire property covered by Exts.A1 and A5 to the appellant/plaintiff – In fact, this alone was declared by the trial Court and the order of injunction was nothing but a natural sequel to such declaration – First Appellate Court confirmed the judgment and decree granted by the trial Court. -No ground to sustain the reversal of the concurrent judgments of the courts below by the High Court in exercise of the power under Section 100 CPC, as no ground justifying such exercise exists in the instant case – Judgment of the High Court liable to be set aside and the judgment of the Sub-Court confirming the judgment and decree dated 30.09.1997 of the District Munsif-cum- Judicial Magistrate Court restored. (Para 22, 33 and 34) Appaiya Vs. Andimuthu@ Thangapandi & Ors.: 2023 STPL(Web) 273 SC

Constitution of India, Article 226 – Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, Section 13(2), 17 – Security Interest (Enforcement) Rules, 2002, Rule 8, 9(2) – Writ jurisdiction – Alternative remedy – Demand notice – Held that the High Court was not justified in exercising its writ jurisdiction under Article 226 of the Constitution more particularly when the borrowers had already availed the alternative remedy available to them under Section 17 of the SARFAESI Act. (Para 92, 96, 105) Celir Llp Vs. Bafna Motors (Mumbai) Pvt. Ltd. & Ors: 2023 STPL(Web) 276 SC

Security Interest (Enforcement) Rules, 2002, Rule 9(2) – Confirmation of Sale – Vested Right – Whether the confirmation of sale by the Bank under Rule 9(2) of the Rules of 2002 invests the successful auction purchaser with a vested right? – Held that the confirmation of sale by the Bank under Rule 9(2) of the Rules of2002 invests the successful auction purchaser with a vested right to obtain a certificate of sale of the immovable property in form given in appendix (V) to the Rules i.e., in accordance with Rule 9(6) of the SARFAESI. (Para 105) Celir Llp Vs. Bafna Motors (Mumbai) Pvt. Ltd. & Ors: 2023 STPL(Web) 276 SC

Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, Section 13(8) – Security Interest (Enforcement) Rules, 2002, Rule 9(1) – Transfer of Property Act, 1882, Section 60 –Mortgage – Right to redemption – What is the impact of the amended Section 13(8) of the SARFAESI Act on the Borrowers’ right of redemption in an auction conducted under the SARFAESI Act? Or in other words, what is the effect of amendment to Section 13(8) of the SARFAESI Act read with Section 60 of the Act 1882?–Held that in accordance with the unamended Section 13(8) of the SARFAESI Act, the right of the borrower to redeem the secured asset was available till the sale or transfer of such secured asset – In other words, the borrower’s right of redemption did not stand terminated on the date of the auction sale of the secured asset itself and remained alive till the transfer was completed in favour of the auction purchaser, by registration of the sale certificate and delivery of possession of the secured asset – However, the amended provisions of Section 13(8) of the SARFAESI Act, make it clear that the right of the borrower to redeem the secured asset stands extinguished thereunder on the very date of publication of the notice for public auction under Rule 9(1) of the Rules of 2002 – In effect, the right of redemption available to the borrower under the present statutory regime is drastically curtailed and would be available only till the date of publication of the notice under Rule 9(1) of the Rules of 2002 and not till the completion of the sale or transfer of the secured asset in favour of the auction purchaser. (Para 105) Celir Llp Vs. Bafna Motors (Mumbai) Pvt. Ltd. & Ors: 2023 STPL(Web) 276 SC

Security Interest (Enforcement) Rules, 2002, Rule 9(2), 9(6)–Auction sale –Sale certificate – Withholding of – Whether a Bank after having confirmed the sale under Rule 9(2), can withhold the sale certificate under Rule 9(6) of the Rules of 2002 and enter into a private arrangement with a borrower? – Held that the Bank after having confirmed the sale under Rule 9(2) of the Rules of 2002 could not have withhold the sale certificate under Rule 9(6) of the Rules of 2002 and enter into a private arrangement with a borrower. (Para 105) Celir Llp Vs. Bafna Motors (Mumbai) Pvt. Ltd. & Ors: 2023 STPL(Web) 276 SC

Constitution of India, Article 226 – Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, Section 13(2), 17 – Security Interest (Enforcement) Rules, 2002, Rule 8, 9(2) – Demand notice – Auction sale – Writ jurisdiction Whether the High Court under Article 226, could have applied equitable considerations to override the outcome contemplated by the statutory auction process prescribed by the SARFAESI Act?–Held that the High Court under Article 226 of the Constitution could not have applied equitable considerations to overreach the outcome contemplated by the statutory auction process prescribed under the SARFAESI Act. (Para 105) Celir Llp Vs. Bafna Motors (Mumbai) Pvt. Ltd. & Ors: 2023 STPL(Web) 276 SC

Securitization and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, Section 13(8) (as amended by Act, 2016), 35 – Security Interest (Enforcement) Rules, 2002, Rule 8, 9(1) – Transfer of Property Act, 1882, Section 60 – Mortgage – Auction sale – Publication of notice – Right to redemption – Whether the right of redemption of mortgage stood extinguished upon publication of notice of auction? Or in other words till what point of time the right of redemption of mortgage can be exercised in respect of secured asset under the SARFAESI Act?– Held that with the advent of the 2016 Amendment, Section 13(8) of the SARFAESI Act now uses the expression “before the date of publication notice for public auction or inviting quotations or tender from public or private treaty for transfer by way of lease, assignment or sale of the secured assets” which by no stretch of imagination could be said to be in consonance with the general rule under the Act 1882 that the right of redemption is extinguished only after conveyance by registered deed – Thus, in the light of clear inconsistency between Section 13(8) of the SARFAESI Act and Section 60 of the Act 1882 the former special enactment overrides the latter general enactment in light of Section 35 of the SARFAESI Act – Thus, the right of redemption of mortgage is available to the borrower under the SARFAESI Act only till the publication of auction notice and not thereafter, in light of the amended Section 13(8) – As per the amended Section 13(8) of the SARFAESI Act, once the borrower fails to tender the entire amount of dues with all cost & charges to the secured creditor before the publication of auction notice, his right of redemption of mortgage shall stand extinguished / waived on the date of publication of the auction notice in the newspaper in accordance with Rule 8 of the Rules of 2002. (Para 68 and 88) Celir Llp Vs. Bafna Motors (Mumbai) Pvt. Ltd. & Ors: 2023 STPL(Web) 276 SC

Constitution of India, Article 226 – Maharashtra Regional and Town Planning Act, 1966, Sections 22, 33, and 37 – Development Control Regulations – Conversion of land – Challenge to certain conditions in notification – Delay and laches – Doctrine of election – Principles of approbate and reprobate – Development Plan published on 15th December 1992 – Properties of the landowners were reserved as “Green Zone”/ “No Development Zone” – Vide Notification dated 18th August 2004, the same was converted from “No Development Zone” to “Residential Zone” – The said Notification specifically provided that in addition to reserving 10% space as “open space”, which was required to be compulsorily reserved in accordance with the DCR, additional space of 10% was to be reserved for amenities to be transferred to the Municipal Council free of cost – On the basis of the same, the landowners sought permission from the Town Planning Authority for the development of the land, and the same was granted – Consequently the landowners executed an agreement on 27th March 2006, thereby assigning to the Municipal Council an area of 4133.25 sq. mtrs. as ‘open space’, whereas an area of 4126.50 sq. mtrs. was assigned as an ‘amenity space’ –Held that having taken advantage of the sanctioned plan and on the basis of the same laying down the layout and only after failing to get the relief in the Civil Suit and the Revenue proceedings, the landowners approached the High Court and they rightly found no merit in the petition of the landowners – Plot holders had purchased the plot knowing very well that in the sanctioned layout, 10% of space was to be reserved as ‘open space’ and 10% of the land was to be handed over to the Municipal Council as ‘amenity space’ by the landowners free of cost and that the land would vest in the Municipal Council – Knowing this fully well, they entered into transactions with the landowners -Writ petition at their behest also challenging the Notification after a period of almost 14 years ought to have been dismissed on the grounds of delay and laches – High Court was justified in holding that the ownership of the ‘open space’ would vest in the owners of the plot in view of the relevant DCR -High Court was also right in holding that insofar as ‘open space’ is concerned, it was required to be kept as ‘open space’ for use by the plot holders – Insofar as the compulsory reserved land is concerned, it pertains to ‘open space’ with the finding of the High Court in that regard not interfered with – However, insofar as the ‘amenity space’ is concerned, it was on the basis of the conditions imposed by the State of Maharashtra while converting the land, which was reserved for a ‘non-residential’ purpose, to a ‘residential’ purpose – The landowners not only accepted the said condition but also acting on the basis of the same entered into more than one agreement with the Municipal Council transferring the ‘amenity space’ in favour of the Municipal Council – High Court has grossly erred in allowing the writ petitions – Impugned common judgment and order dated 4th July 2019 passed by the High Court liable to be set aside – The writ petition filed by the plot holders also shall stand dismissed. (Para 12 to 24) Shirdi Nagar Panchayat Vs. Kishor Sharad Borawake And Others : 2023 STPL(Web) 284 SC

Constitution of India, Article 142, 136, 226 – Maharashtra Regional and Town Planning Act, 1966, Sections 22, 33, and 37 – Development Control Regulations – Conversion of land – Challenge to certain conditions in notification upheld by High Court – Impugned common judgment and order dated 4th July 2019 passed by the High Court liable to be set aside – Learned counsel for the landowners/plot holders had submitted that the land which is reserved for ‘amenity space’ consists of trees which are aged about 100 years or more – They, therefore, made an offer that if the landowners are permitted to retain the said land, they are willing to transfer another piece of land of the same or near about the same area – Said request found to be reasonable -Landowners/plot holders permitted to make a representation to the Municipal Council for providing/transferring another piece of land on the same road having the same or near about the same area – On such an application being made, the Municipal Council would consider the same in accordance with law – Above directions passed under Article 142 of the Constitution of India in order to protect the trees that are aged 100 years or older.(Para 25 and 26) Shirdi Nagar Panchayat Vs. Kishor Sharad Borawake And Others : 2023 STPL(Web) 284 SC

Civil Procedure Code, 1908, Section 100 – Second appeal – Substantial question of law – Concurrent findings – Whether in the absence of affording adequate opportunity of hearing to the parties on addressing the framed substantial questions of law, the High Court could have proceeded to decide the same in an appeal preferred under section 100 ‘CPC’, particularly, when the findings of fact rendered by two Courts, were sought to be reversed? – A Court sitting in second appellate jurisdiction is to frame substantial question of law at the time of admission, save and except in exceptional circumstances. Post such framing of questions the Court shall proceed to hear the parties on such questions, i.e., after giving them adequate time to meet and address them. It is only after such hearing subsequent to the framing that a second appeal shall come to be decided. (Para 2, 27) Suresh Lataruji Ramteke Vs. Sau. Sumanbai Pandurang Petkar And Others: 2023 STPL(Web) 287 SC

Civil Procedure Code, 1908, Section 100 – Specific Relief Act, 1963, Section 16(c) – Specific performance – Concurrent findings – Readiness and willingness to execute the sale deed – Whether in the absence of any trial record or without summoning and perusing the trial record, findings of fact on the issue of plaintiff’s readiness and willingness to execute the sale deed, could have been reversed by the High Court in exercise of its appellate jurisdiction under section 100 CPC?–Held that in ordinary course, the High Court in such jurisdiction does not interfere with finding of fact, however, if it does find any compelling reason to do so as regard in law, it can do but only after perusing the records of the Trial Court, on analysis of which the conclusion arrived at by such a Court is sought to be upturned – In other words, when overturning findings of fact, the Court will be required to call for the records of the Trial Court or if placed on record, peruse the same and only then question the veracity of the conclusions drawn by the Court below. (Para 2, 27) Suresh Lataruji Ramteke Vs. Sau. Sumanbai Pandurang Petkar And Others: 2023 STPL(Web) 287 SC

Insolvency and Bankruptcy Code, 2016, Section 7, 29(A)(e) – Corporate Insolvency Resolution Process – Appellant is the Resolution Professional– He approached this Court as the respondent No.1 filed a contempt proceeding before the NCLAT alleging that the Resolution Professional was not acting in terms of the order dated 01.12.2021- The impugned judgment is predicated on a broad reasoning as if ipso facto there is no need to call other proposals if it is an MSME -There is no discussion on the special circumstances other than the reference to judgment in Bafna’s case–Held that the appellant cannot be faulted for calling for other proposals in which the proposal given by respondent No.1 was also to be examined, put them to voting before the CoCs and declare the results – To that extent, the impugned order is set-aside – All proceedings emanating from the premise of the observations in paragraph Nos. 32 and 34 of the impugned order, whether in the contempt proceedings or any other proceedings would dissolve and be set aside – Prayer by respondent No.1 to give some hiatus time to him on account of the fact that he has submitted an OTS (One Time Settlement) proposal to the financial creditors granted – A two months window granted to persuade the financial creditors – Made clear that in case the financial creditors are not inclined to do so, if any further proceedings are initiated by the respondent(s) in that behalf, that would not impede the process to be dragged on by the respondent No.1. It is a onetime window given to the respondent No.1 – This is also as according to the learned counsel for respondent No.1. if the financial creditors accept the proposal and the flat buyers are involved, the process started would itself dissolve – While enunciating the legal proposition, e paragraph Nos.32 and 34of the impugned judgment liable to be set aside – Beyond the window of two months, if the OTS is not accepted, the appellant will be free to declare the results of the e-voting qua all the proposals. (Para 11 to 21) R. Raghavendran Vs. C. Raja John & Ors.: 2023 STPL(Web) 289 SC

Constitution of India, Article 32, 136 – Water (Prevention and Control of Pollution) Act 1974, Section 25/26 , 33A – Environment (Protection) Rules 1986, Schedule VI – Bio-Medical Waste (Management and Handling) Rules 1988 – Rajasthan Municipality Act 1959, Section 98 – Permanent Lok Adalat directing closure of the slaughter house – Jurisdiction – Writ petition Article 32 of the Constitution has been filed in the above backdrop seeking a direction to the State of Rajasthan and the Municipal Board of Tonk, the State Pollution Control Board and other authorities to discharge their statutory duties under Schedule XII of the Constitution and Section 98 of the Rajasthan Municipality Act 1959 – A direction has been sought to the respondents to provide water to the water treatment plant and to stop the illegal slaughter on the streets in the city of Tonk – Held that the writ petition under Article 32 of the Constitution cannot obviate the findings which have been arrived at by the statutory board in the exercise of its jurisdiction under Section 33A of the Act of 1974 -The petitioners in the writ petition cannot be oblivious of the fact that the slaughter house was closed as a result of the failure to meet the prescribed pollution parameters and since the waste which was generated from its operation was being discharged without proper treatment – The basis of the appeals which question the jurisdiction of the Lok Adalat, directing a closure has since been overtaken by the subsequent developments in terms of which the slaughter house has been closed – The closure is not in pursuance of the direction of the Lok Adalat, but in exercise of the statutory jurisdiction of the Rajasthan Pollution Control Board – Petitioners held to be not entitled to any relief since the closure of the slaughter house has been effected after following due process of law in terms of the statutory powers conferred on the Pollution Control Board under Section 33 A of the Act 1974 – Civil appeals and the writ petition accordingly stand dismissed. (Para 12 and 13) Panchayat Qureshian And Another Vs. State Of Rajasthan And Others: 2023 STPL(Web) 291 SC

Civil Procedure Code, 1908, Section 100 – Second appeal – Substantial question of law –Non formulating of – In the absence of framing any substantial question of law the appeal has been allowed, that too, at the stage of admission, without issuance of notice to the other respondents Nos.1, 3 and 4 and by hearing only learned counsel for the respondent No.2 before the High Court who was on caveat – The aforesaid errors are compounded by the fact that a sum of Rs.50,000/- cost was awarded to the successful plaintiffs who were respondents before the High Court in lieu of any notice being issued to them! – Held that the aforesaid infirmities cannot be overlooked and compensated by ordering a sum of Rs.50,000/- to be paid by the first respondent herein (appellant in the Second Appeal before the High Court) to the respondent-plaintiff(s) – Impugned judgment dated 13.04.2022and impugned order dated 23.06.2022 passed in the Regular Second Appeal as well as the Review Petition liable to be set aside – The matters remanded to the High Court to consider the same in accordance with law and by being mindful of the aforementioned flaws in the impugned judgment and order. (Para 2, 15 and 16) Hemavathi & Ors. Vs. V. Hombegowda & Anr.: 2023 STPL(Web) 292 SC

Transfer of Property Act, 1882, Section 105, 106 and 107 – Registration Act, 1908, Section 17 and 49 – Unregistered deed of lease – Legality of notice to quit and vacate the premises –Collateral purpose – Unregistered deed of lease for immovable property stipulating its duration for a period of five years – Held that nature and character of possession contained in a flawed document (being unregistered) in terms Section 107 of the 1882 Act and Sections 17 and 49 of the Registration Act can form collateral purpose when the “nature and character of possession” is not the main term of the lease and does not constitute the main dispute for adjudication by the Court – In this case, the nature and character of possession constitutes the primary dispute and hence the Court is excluded by law from examining the unregistered deed for that purpose – In respect of the suit out of which this appeal arises, purpose of lease is the main lis, not a collateral incident – The lease was for use by the predecessor of the appellants “for the purpose of his business and/or factory.” – The property was described in the schedule to be estimated 16 cottahs of land “with a factory shed/godown space” – Such description would not be sufficient to establish that the same was for manufacturing purpose – Factum of creation of tenancy has been established – But the purpose of tenancy, so as to attract the six months’ notice period under Section 106 of the 1882 Act cannot be established by such evidence as in such a situation, registration of the deed would have been mandatory – The onus would be on the defendant to establish the fact that manufacturing activity was being carried on from the demised premises- A mere statement by the DW-1 or the purpose of lease as specified in the lease agreement would not be sufficient to demonstrate the purpose of lease to be for manufacturing – This could be proved by explaining what kind of work was being carried on in the factory shed – In such a situation also, the registration of the deed would have been necessary – In absence of such registration, tenancy would have been of “month to month” character – Do not think the High Court erred in law in dismissing the defendant’s appeal. (Para 13 to 15) M/S Paul Rubber Industries Private Limited Vs. Amit Chand Mitra & Anr.: 2023 STPL(Web) 295 SC

Criminal

Penal Code, 1860, Sections Section 364A read with Section 120B; 302 and 364A, 201 –Circumstantial evidence – Appreciation of evidence – There is no clarity as to the time at which ‘A’ went missing i.e. at 9 o’clock in the morning itself or at 9 o’clock at night – Further, the prosecution would have it that the kidnappers were not even certain as to the ransom amount that they wanted – PW-1-mother of the ‘A’ stated during her cross-examination that the person on the phone who made the ransom call was a stranger and then went on to add that she had recognised the voice but as her child’s life was in danger, she did not tell the police – She further stated that she did not say that she had recognized the voice until the end – She also admitted that she did not even mention in her examination-in-chief that she had recognised the voice – As to why sniffer/tracking dogs would be pressed into service after the police found the dead body, the murder weapon and other material objects is not comprehensible – Notably, the Investigating Officer (PW-16) did not even mention the use of sniffer/tracking dogs during investigation – This suppression, be it for whatever reason, does not reflect well upon the prosecution – Though the call data statement which was obtained from telecom company was sufficient to link ‘O’ with the ransom calls, the police chose to mention in the FIR that the accused was ‘Unknown’ – Further, if Ex. P31 statement pointed to the involvement of ‘O’, as claimed by the Investigating Officer (PW-16), there is no explanation forthcoming as to why the police picked up ‘R’ first – There is no clarity as to when the appellants were actually taken into ‘custody’ by the police – Evidence of this defence witness-DW2 remained practically unshaken during her cross-examination – The prosecution conveniently chose to ignore this witness altogether and made no mention of her whatsoever – Prosecution utterly failed to pass muster in establishing its case – There are cavernous gaps in the evidence that the prosecution would offer as an ‘unbroken chain unerringly pointing to the guilt of the appellants’. (Para 15 to 20) Rajesh & Anr Vs. State Of Madhya Pradesh: 2023 STPL(Web) 277 SC

Evidence Act, 1872, Section 26 and 27 – Penal Code, 1860, Sections Section 364A read with Section 120B; 302 and 364A, 201 – Confession – Disclosure statement – Though ‘R’ was taken to the police station, be it on 29.03.2013 or even earlier, he could not be said to be in ‘police custody’ till he was arrested at 18:30 hours on 29.03.2013, as he did not figure as an ‘accused’ in the FIR and was not ‘accused of any offence’ till his arrest – Therefore, it was his arrest which resulted in actual ‘police custody’, and the confession made by him, before such arrest and prior to his being ‘accused of any offence’, would be directly hit by Section 26 of the Evidence Act and there is no possibility of applying the exception under Section 27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact – In consequence, the purported discovery of the dead body, the murder weapon and the other material objects, even if it was at the behest of ‘R’, cannot be proved against him, as he was not ‘accused of any offence’ and was not in ‘police custody’ at the point of time he allegedly made a confession – So too would be the case with ‘RY’ and ‘O’, as they also were not named as the ‘accused’ in the FIR and were not ‘accused of any offence’ till they were arrested and taken into ‘police custody’, well after the recording of their confessions and the alleged seizures based thereon – Held that this lapse on the part of the police is fatal to the prosecution’s case, as it essentially turned upon the ‘recoveries’ made at the behest of the appellants, purportedly under Section 27 of the Evidence Act. (Para 27) Rajesh & Anr Vs. State Of Madhya Pradesh: 2023 STPL(Web) 277 SC

Criminal Procedure Code, 1973 100 – Penal Code, 1860, Sections Section 364A read with Section 120B; 302 and 364A, 201 – Circumstantial evidence – Panch witnesses – Held that the manner and method in which the panchnamas and memos were prepared in the case on hand leave the prosecution high and dry -Naksha Panchnama (Ex. P3) dated 29.03.2013 records the names of five witnesses, including PW-2 and PW-8, and states that the witnesses inspected the body of deceased ‘A’; that there was a big wound on the right side of the neck of the deceased; that, in the opinion of the panch witnesses, the deceased was murdered by ‘R’ and ‘RY’ by cutting his throat with a knife; that his body was stuffed in a sack; and that the sack was thrown in a well – It then goes on to record the opinion of the Investigating Officer (PW-16) wherein, after noting the factual aspects, he stated that ‘A’ was murdered by ‘R’ and ‘RY’ by cutting his throat with a knife – Notably, the narrative is not that of the panch witnesses but mostly of PW-16 himself and the panch witnesses merely signed the panchnama – Akin thereto, the Crime Details Form (Ex. P13) – Though the Crime Details Form notes that two panch witnesses were present, there is no narrative by them and they simply signed the form – The same is the position with the Crime Details Form (Ex. P14) – The same panch witnesses find mention in this Crime Detail Form and they affixed their signatures but again, it is not their narrative and there is no recording of how they went about finding these objects – Further, the form straightaway records the opinion that ‘R’ and ‘RY’ had murdered ‘A’, put his body in a plastic sack and threw it into the well – Property Seizure Memos (Ex. P18 and Ex. P23), relating to the seizure of the blood-stained clothes of accused respectively, are drafted likewise wherein the witnesses, (PW-9) and ‘S’ are named but there is no narrative on their part as to how they were led and assisted by someone to find these objects – On the same lines, Property Seizure Memo (Ex. P9), relating to the seizure of the blood-stained soil, controlled soil and the plastic slippers – Witnesses to the panchnamas and the seizures acted as mere attestors to the documents and did not disclose in their own words as to how these objects were discovered, i.e., at whose instance and how – No lawful validity attaches to these proceedings recorded by the police in the context of collection of all this evidence -Source and origin of the DNA evidence, viz., the hair, is rendered suspect, the end result of that DNA analysis serves no real purpose in establishing the prosecution’s case – There are shocking lapses and the slipshod investigation on the part of the police – Yawning infirmities and gaps in the chain of circumstantial evidence in this case warrant acquittal of the appellants by giving them the benefit of doubt- Conviction and sentences of all the three appellants on all counts liable to be set aside. (Para 31 to 34, 39) Rajesh & Anr Vs. State Of Madhya Pradesh: 2023 STPL(Web) 277 SC

Penal Code, 1860, Sections 302/307/34 – Arms Act, 1959, Section 27 – Common attention – Murder – Accused party had no animosity or grudge qua the two deceased – Prosecution evidence is that all the four accused left together from the place where altercation had occurred and soon all of them were seen at the roof-top of PW-2’s house from where ‘B’ opened fire with a view to teach a lesson to those who had supported the rival faction – Neither PW-2 nor PW- 8, whose brother and son, respectively, had died, stated that the two deceased had supported ‘S’ (i.e., the rival group) – Rather, according to them, the two deceased had no enmity with any of the accused persons – Further, statements of witnesses are not consistent as to establish beyond reasonable doubt that the appellants had exhorted ‘B’ to fire shots at the two deceased – The evidence, which is consistent, is about exhorting ‘B’ not to spare ‘S’’s supporters – But there is no evidence that the two deceased were ‘S’’s supporters – Held that general exhortation is not sufficient to fasten them with vicarious liability for shots fired by ‘B’ at the two deceased, particularly, when the testimony of witnesses is not consistent whether the two deceased were shot before or after the exhortation made by the appellants – However, what is certain from the evidence is, that the assailant ‘B’ had the gun as well as motive to use it, inasmuch as his relative ‘SK’ was insulted during altercation – Moreover, ‘B’ had taken a vow to teach supporters of the other side a lesson – In that kind of a scenario, even if ‘B’ had not been instigated by any of the other accused, he might have fired from his weapon to stamp his authority and, therefore, killing of the two deceased could be his own individual act for which he alone would be liable – To clinch a conviction of the appellants for the murder of the two deceased with the aid of Section 34 of the I.P.C., the prosecution was required to lead clear and cogent evidence that the shots fired by ‘B’ at the two deceased were in furtherance of common intention of all – In absence whereof, it would be extremely unsafe to convict the appellants with the aid of Section 34 of the I.P.C. for the offence of murder. (Para 31) Sunil Vs. State Of Nct Of Delhi : 2023 STPL(Web) 278 SC

Penal Code, 1860, Sections 302/307/34 – Arms Act, 1959, Section 27 – Attempt to murder – Conviction Valid – Evidence is that indiscriminate firing continued for long – As many as twenty-six persons on Street No.300 received pellet injuries – 16 empty cartridges were seized from ‘B’ – Evidence is that the appellants were with the accused ‘B’, exhorting him not to spare ‘S’’s supporters, and pointing at targets – Though, evidence might not be specific as to who in particular was targeted at the behest of the appellants but the very fact that indiscriminate firing continued for long, say 20-25 minutes and the appellants were found present and exhorting ‘B’ to fire – Held that it could be said with certainty that the appellants had knowledge that the act which ‘B’ was exhorted to commit was so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death of a person as per Section 300 (Fourthly) of the I.P.C along with illustration (d) thereto) – Therefore, the gunshots fired by ‘B’ at several by-standers/supporters of ‘S’, if not all, could be said to be a criminal act done by several persons in furtherance of the common intention of all – A fortiori, even though it might not be safe to hold the appellants vicariously liable for the offence of murder of the two deceased persons for the reasons already detailed , but looking at the nature of the incident, the number of persons injured and the role attributed to the appellants, the appellants are liable to be convicted for the offence punishable under Section 307 with the aid of Section 34 of the I.P.C -Finding of the courts below to that extent does not call for any interference. (Para 33) Sunil Vs. State Of Nct Of Delhi : 2023 STPL(Web) 278 SC

Criminal Procedure Code, 1973, Section 313 – Penal Code, 1860, Sections 302/307/34 – Arms Act, 1959, Section 27 – Criminal Procedure – Examination of accused – Whether, on account of not putting the incriminating circumstance of exhortation to the appellants while recording their statements under Section 313 CrPC, appellants’ conviction with the aid of Section 34 of the I.P.C. stood vitiated? – Gist of the testimony of various witnesses delineating the exact role played by the appellants was not put to the appellants for the purposes of recording their statement –Though, the incriminating circumstance pertaining to appellants exhorting the main accused ‘B’ not was specifically put to the appellants, they were aware of the prosecution case against them as, vide question no.(i), they were apprised of the FIR lodged by PW-2 which delineated their role as the ones who exhorted the main accused ‘B’ to fire gunshots – Further, vide question no.(iv) it was clarified that gunshots were fired by ‘B’ – And questions (ii) and (iii) indicated that the appellants were being proceeded against as they had participated in the crime by sharing common intention with the main accused – Taking the above into account as also that the appellants were throughout represented by their counsel and had cross-examined the prosecution witnesses, yet they raised no such plea, either before the trial court or the High Court, it can safely be assumed that the appellants had suffered no prejudice on that count. – More so, when the case of the appellants was of complete denial i.e., that they were not present at the time of occurrence, which was disbelieved by the trial court as well as the High Court – Held that the conviction of the appellants is not vitiated for alleged non-compliance of the provisions of Section 313 CrPC. (Para 45) Sunil Vs. State Of Nct Of Delhi : 2023 STPL(Web) 278 SC

Penal Code, 1860, Section 34 – Common intention – Proof of – Held that to fasten liability with the aid of Section 34 of the I.P.C. what must necessarily be proved is a common intention to commit the crime actually committed and each accused person can be convicted of that crime, only if it is in furtherance of common intention of all – Common intention pre-supposes a prior concert, though pre-concert in the sense of a distinct previous plan is not necessary as common intention to bring about a particular result may develop on the spot – The question whether there was any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case – The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted. (Para 29) Sunil Vs. State Of Nct Of Delhi : 2023 STPL(Web) 278 SC

Prevention of Corruption Act, 1988, Section 7 and Section 13(1)(d) r/w 13(2), 20 – Bribery case – Presumption – Death of complainant – Held that the death of the complainant or non-availability of the complainant at the time of trial could be said to be fatal to the case of prosecution, nor could it be said to be a ground to acquit the accused – It is always open for the prosecution to prove the contents of the complaint and other facts in issue by leading other oral or documentary evidence, in case of death of or non-availability of the complainant. (Para 9) P. Sarangapani (Dead) Through Lr Paka Saroja Vs. State Of Andhra Pradesh: 2023 STPL(Web) 280 SC

Prevention of Corruption Act, 1988, Section 7 and Section 13(1)(d) r/w 13(2), 20 – Corruption – Presumption – Bribery Case – Appellant/ accused in his explanation under Section 313 had accepted the receipt of alleged amount – Once the undue advantage i.e., any gratification whatever, other than the legal remuneration is proved to have been accepted by the accused, the Court is entitled to raise the presumption under Section 20 that he accepted the undue advantage as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly – Burden had shifted on the appellant to dispel the statutory presumption under Section 20 of the said Act, and prove that it was not accepted as a motive or reward for the performance of his public duty, which the appellant had failed to dispel – Explanation offered by the appellant did not tally with the statement of the complainant recorded under Section164 of Cr.P.C. – Pre-trap and post-trap proceedings were duly proved by the prosecution by examining the concerned witnesses, who had duly supported the case of prosecution – Both the courts have appreciated the evidence on record threadbare in the right perspective and have found the appellant guilty for the offence under Section 7 and Section 13(1)(d) r/w 13(2) of the PC Act – Do not see any valid ground to interfere with the well-considered findings recorded by both the courts below. (Para 10 to 13) P. Sarangapani (Dead) Through Lr Paka Saroja Vs. State Of Andhra Pradesh: 2023 STPL(Web) 280 SC

Foreign Exchange Management Act, 1999, Section 49(1), 49(4) – Foreign Exchange Regulation Act, 1973, Section 3(c),Sections 56 and 57, 61(2)(ii)(a) to (c) – Penal Code, 1860, Section 120B – FERA – Issuance of process – Challenge as to –Contention that that the first respondent Enforcement Officer was appointed under clause (e) of Section 3 of FERA (repealed Act) and thus, with effect from 1st June 2000, the said officer is not empowered to exercise powers of an Enforcement Officer under FERA as the said powers have not been saved and could not file complaint repelled – Held that subsection(4) of Section 49 of FEMA, which provides that subject to the provisions of subsection(3), all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed – Subsection(3) of Section 49 saves the prosecution for the offences punishable under Sections 56and 57, which have been committed prior to the repeal of FERA, provided the competent Court takes its cognizance within two years from the date of coming into force of FEMA -In view of subsection(4) of Section 49, for the purposes of the prosecution of offences punishable under Sections 56 and57 of FERA, by a legal fiction, the provisions of the repealed Act will continue to apply – However, the same will continue to apply only for the purposes of prosecution of the offences which are saved by subsection(3) of Section 49 of FEMA -That is how the complaint filed by the Enforcement Officer, duly authorised under clause (ii) of subsection(2) of Section61 of FEMA, will continue to be valid, inasmuch as by virtue of the legal fiction incorporated in subsection(4) of Section49, the prosecution will continue to be governed by the provisions of FERA as if the same had not been repealed -Therefore, during the sunset period, the authorisation of the Enforcement Officers to file the complaints continues to be valid for the limited purposes of subsection(3) of Section 49of FEMA – A Statute cannot be interpreted in such a manner that any provision thereof is rendered otiose -Unable to accept the submissions made by the learned senior counsel appearing for the appellants – Any construction which will defeat the plain intention of the legislature must be rejected. The Court must adopt the interpretation which makes the provisions ofa Statute workable – Appeal liable to be dismissed. (Para 11, 12 and 15) First Global Stockbroking Pvt. Ltd. & Ors Vs. Anil Rishiraj & Anr: 2023 STPL(Web) 281 SC

Narcotic Drugs and Psychotropic Substances Act, 1985, Section 21(c), 53, 67 – Evidence Act, 1872, Section 25 – NDPS – Confessional statement to NCB officer – Admissibility in evidence – Link evidence – Conviction of both the appellants on the basis of confessional statement made before NCB officer – In the case of Tofan Singh v. State of Tamil Nadu a larger Bench of Apex Court held that the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act – A statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act – Once the confessional statement of the co-accused, ‘S’ recorded by the NCB officers under Section 67 of the NDPS Act, who had attributed a role to ‘B’ and the subsequently recorded statement of ‘B’ himself under Section 67 of the NDPS Act are rejected in the light of the law laid down in Tofan Singh, there is no other independent incriminating evidence that has been brought to the fore by the prosecution for convicting ‘B’ under the NDPS Act – Held that on ignoring the said confessional statements recorded before the officers of the NCB in the course of the investigation, the vital link between ‘B’ and the offence for which he has been charged snaps conclusively and his conviction order cannot be sustained – ‘B’ deserves to be acquitted of the charge of being in conscious possession of commercial quantity of heroin under the NDPS Act – Ordered accordingly. (Para 9 to 12) Balwinder Singh (Binda) Vs. The Narcotics Control Bureau: 2023 STPL(Web) 285 SC

Narcotic Drugs and Psychotropic Substances Act, 1985, Section 21(c), 35, 53, 67 – Evidence Act, 1872, Section 25 – NDPS – Confessional statement to NCB officer – Admissibility in evidence – Presumption – Held that statement made by ‘S’ and recorded under Section 67 of the NDPS Act will have to be discarded outright as it cannot be used as a confessional statement having been recorded by the NCB officials who, in terms of the verdict in Tofan Singh’s case are to be treated as “police officers” under the provisions of Section 25 of the Evidence Act – Case of appellant ‘S’ rests on other relevant factors including the testimonies of three prime prosecution witnesses namely, PW-1, PW-3 and PW-5 – Their testimonies when examined carefully, show that they had remained consistent and unfailing – There appear no material contradictions or deviations in their depositions for this Court to extend any benefit to the appellant – ‘S’ – Prosecution was successful in establishing the fact that it was the appellant – ‘S’ who was driving the car, when he was accosted at the spot where the naka was laid by the NCB Officers on the relevant date – A photocopy of the registration certificate of the carwas recovered on a search of the appellant – ‘S’ – He was the owner of the car – On search of the car by the NCB Officers in the presence of two independent witnesses contraband was recovered from the car in the presence of the independent witnesses and, a Gazetted Office, who was part of the NCB team – Even though one of the two independent witnesses had turned hostile and was dropped by the prosecution, the testimony of the other independent witness was consistent and nothing material could be elicited by the accused during his cross-examination – Through the deposition of the Chemical Examiner the prosecution successfully proved the report submitted by him stating inter alia that on testing the samples, the substances drawn from the bags recovered from the car of the appellant – ‘S’, were heroin – The samples drawn and sealed were found untampered and the testimony of Constable Balwinder Kumar corroborated the fact that he had carried the samples1with him and deposited them with the CRCL, New Delhi with all the seals intact – Held that the prosecution was able to discharge the onus cast on it to prove the foundational facts – Thus, the initial burden of proving that the appellant – ‘S’ had the knowledge that the car owned and being driven by him at the relevant point in time was being used for transporting narcotics, stood discharged – Once it is concluded that the prosecution had produced adequate evidence to prove beyond reasonable doubt that the accused – ‘S’ had the knowledge, the presumption contemplated under Section 35 of the NDPS Act would have to be drawn against him to hold that he had a culpable mental state for indicting him for the offence for which he had been charged – Order of conviction and the sentence imposed on ‘S’ liable to be maintained. (Para 17, 19 and 27) Balwinder Singh (Binda) Vs. The Narcotics Control Bureau: 2023 STPL(Web) 285 SC

Constitution of India, Articles 20 and 21 – Criminal Procedure Code, 1973, Section 433A – Travancore-Cochin Prison Act, Sections 3(5) and 59(4)- Kerala Prison Rules, 1958, Rule 216(1), 244(2), 299(c), 545A – Kerala Prisons and Correctional Services (Management) Act, 2010, Section 102(2), 77, 99 – Kerala Prisons and Correctional Services (Management) Rules, 2014, Rule 464, 468, 545A – Premature lease –Prayer for – Conviction and sentence under Sections 302 and 392 IPC only – Consistent stand now being adopted by the Government is that persons involved in the murder of women and children and persons convicted in offences relating to POCSO cases shall not be granted premature release – Since the petitioner involved in the murder of a woman his premature release was rejected by Government in accordance with the above stand – Custody certificate produced in his writ petition, confirms that the petitioner completed actual imprisonment of 25 years 9 months and 26 days on 07.06.2022 – Petitioner’s case had been considered by the Advisory Committee/Jail Advisory Board under prevailing Rules on nine occasions of which three times, the Board had recommended his premature release – However, the state government had rejected his request on all three occasions – To issue a policy directive, or guidelines, over and above the Act and Rules framed (where the latter forms part and parcel of the former), and undermine what they encapsulate, cannot be countenanced – Blanket exclusion of certain offences, from the scope of grant of remission, especially by way of an executive policy, is not only arbitrary, but turns the ideals of reformation that run through our criminal justice system, on its head – Typecasting convicts, through guidelines which are inflexible, based on their crime committed in the distant past can result in the real danger of overlooking the reformative potential of each individual convict – Held that 1958 Rules are clear – a life sentence, is deemed to be 20 years of incarceration – After this, the prisoner is entitled to premature release – The guidelines issued by the NHRC pointed out by the counsel for the petitioner, are also relevant to consider – that of mandating release, after serving 25 years as sentence (even in heinous crimes) – At this juncture, redirecting the petitioner who has already undergone over 26 years of incarceration (and over 35 years of punishment with remission), to undergo, yet again, consideration before the Advisory Board, and thereafter, the state government for premature release – would be a cruel outcome – Rule 376 of the 2014 Rules prescribes that prisoners shall be granted remission for keeping peace and good behaviour in jail – As per the records produced by the State, the petitioner has earned over 8 years of remission, thus demonstrating his good conduct in jail – The discussions in the minutes of the meetings of the Jail Advisory Board are also positive and find that he is hardworking, disciplined, and a reformed inmate – In the interest of justice it would be appropriate to direct the release of the petitioner, with immediate effect – The writ petition allowed in the above terms. (Para 4, 5, 28, 33 to 35) Joseph Vs. State Of Kerala And Others: 2023 STPL(Web) 288 SC

Contempt of Courts Act 1971, Explanation to Section 3 – Penal Code, 1860, Section 228A – Criminal Procedure Code, 1973, Section 327 – Juvenile Justice Act, 2015, Section 74 – Right to Information Act, 2005, Sections 8(1)(g) & (h) and 8(2) – Police encounters – Procedure to be followed by the police in investigating – Issue, governing police encounters, has since been dealt with in the judgment of this Court dated 23 September 2014 in People’s Union for Civil Liberties v State of Maharashtra, (2014) 10 SCC 635 – The propriety and procedure of media briefings by police personnel – Modalities to be followed by the police in conducting media briefings where a criminal investigation for an alleged offence is in progress – The issue assumes significance, particularly, in the context of the manner in which media reportage takes place, particularly in crimes involving a degree of public interest – Amicus Curiae has prepared the following suggestions on the basis of which appropriate guidelines can be formulated for conducting media briefings – All the Directors General of Police shall, within a period of one month from the date of this order, communicate to the Union Ministry of Home Affairs their suggestions for the preparation of appropriate guidelines – Thereafter, the Union Ministry of Home Affairs shall proceed to prepare the guidelines after considering the views which have been received from the Directors General of Police and after consulting other stake holders including representative segments of the print and electronic media who may have suggestions on the issue – Organisations representing the print and electronic media should also be consulted – The National Human Rights Commission which has also prepared its response to the questionnaire which was circulated by the Amicus Curiae – The view point of the National Human Rights Commission shall also be duly taken into consideration – This exercise shall be completed by the Union Ministry of Home Affairs by 31 December 2023. (Para 1,2, 16, 19 to 21) Peoples Union For Civil Liberties And Another Vs. State Of Maharashtra And Others: 2023 STPL(Web) 290 SC

Compensation

Motor Vehicles Act, 1988, Section 2(21) read with Sections 2(15) and2(48) – MACT – Light motor vehicle – Driving licence in respect of a “light motor vehicle” – Entitlement to drive a “transport vehicle of light motor vehicle class having unladen weight not exceeding 7500 kgs.- Apart from the specific submission of the Union Government during the course of hearing, that it is open to re-evaluate the position in law, it would be necessary for the Union Government to have afresh look at the matter – Held that issue of interpretation which has been referred to the Constitution Bench by the referral order dated 8 March 2022 should await a careful evaluation of the policy considerations which may weigh with the Government in deciding as to whether the reversal of the decision as it obtains in Mukund Dewangan is warranted and, if so, the way forward that must be adopted bearing in mind the diverging interests, some of which have been noted in the earlier part of the order – Hence, in view of the consequences which may arise by the reversal of the judgment in Mukund Dewangan, it would be appropriate if the entire matter is evaluated by the Government before this Court embarks upon the interpretative exercise – Once the Court is apprised of the considered view of the Union Government, the proceedings before the Constitution Bench can be takenup – Union Government requested to carry out this exercise within a period of two months.(Para 11, 13 to 15) M/S Bajaj Alliance General Insurance Co Ltd. Vs. Rambha Devi & Ors.: 2023 STPL(Web) 293 SC

Dishonour of Cheque

Negotiable Instruments Act, 1881, Section 138, 148 – Criminal Procedure, 1973, Section 389 – Dishonour of Cheque – Suspension of sentence – Condition of pre-deposit of minimum of 20% of the compensation/fine amount – Challenge as to – Held that normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 148 – However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded – Both the Sessions Courts and the High Court have proceeded on the erroneous premise that deposit of minimum 20% amount is an absolute rule which does not accommodate any exception – The learned counsel appearing for the appellants, at this stage, states that the appellants have deposited 20% of the compensation amount – However, this is the matter to be examined by the High Court – Impugned orders of the High Court liable to be set aside and the revision petitions filed by the appellants before the High Court restored – High Court, after hearing the parties, will consider whether 20% of the amount is already deposited or not – If the Court comes to the conclusion that 20% of the amount is not deposited, the Court will re-examine the Revision Petitions in the light of observation made in this judgment – Till the disposal of the restored Revision Petitions, the interim order passed by this Court ordering suspension of sentence will continue to operate.(Para 6, 7, 10 to 12) Jamboo Bhandari Vs. M.P. State Industrial Development Corporation Ltd. And Others : 2023 STPL(Web) 294 SC

Family

Succession Act, 1925, Section 63, 276 – Evidence Act 1872, Section 68 – Will – Proof of execution – Grant of Probate or Letter of Administration – Will was duly executed by the testator in the presence of witnesses out of his free Will in a sound disposing state of mind and the same stands proven through the testimony of one of the attesting witnesses who was examined as PW2 by the Civil Court – This witness categorically states that the testator executed the Will in question and, both he and the testator signed the Will in the presence of each other – There is no evidence on record to conclude that the deceased was not in a fit or stable mental condition at the time of execution of a Will, or that a Will was executed under suspicious circumstances, or the presence of any element of undue influence – Held that both the courts below have rightly noted that the relevant provisions were complied with, and given the well-reasoned order upholding the validity of the Will, the same does not warrant interference of this court – Since the validity of the Will stands proven according to settled principles of law, consequential benefits be disbursed accordingly. (Para 12 to 16) Meena Pradhan & Ors Vs. Kamla Pradhan & Anr.: 2023 STPL(Web) 282 SC

Succession Act, 1925, Section 63, 276 – Evidence Act 1872, Section 68 – Will – Proof of execution – Grant of Probate or Letter of Administration – Held that requirements enshrined under Section 63 of the Succession Act have to be categorially complied with for the execution of the Will to be proven in terms of Section 68 of the Evidence Act – Apart from statutory compliance, broadly it has to be proved that (a) the testator signed the Will out of his own free Will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances. (Para 8 and 11) Meena Pradhan & Ors Vs. Kamla Pradhan & Anr.: 2023 STPL(Web) 282 SC

Service Law

Constitution of India, Article 14 – Service Law – Absorption – Claim for absorption as Assistant Teacher Higher Secondary Section – Constructive res judicata – Appellant was appointed as a substitute teacher in the pay scale of a primary teacher Rs.4500-7000 – Appellant’s claim for absorption as Assistant Teacher in the Higher Secondary Section in the pay-scale of Rs.5500-9000 – In fact, when he filed the first round of proceedings in O.A. No. 209 of 1991, no plea was raised that he worked as an Assistant Teacher in the Higher Secondary Section – Even when he obtained interim orders from the Tribunal on 03.12.1990, it was only to the effect that the services of the appellant should not be dispensed with without the leave of the Court – Even before the Tribunal, the argument was only about regularization. Before this Court too, no claim for regularization as Assistant Teacher in the Higher Secondary Section was made – Screening Committee having considered him, pursuant to the orders of this Court, has thought it fit to absorb him only as a primary teacher – In the earlier round of proceedings culminating in the order of this Court dated 15.02.1996, this issue was never raised – His claim for absorption as an assistant teacher in the Higher Secondary Section is clearly barred by constructive res judicata – Held that the appellant’s claim for absorption as Assistant Teacher in the Higher Secondary Section in the pay-scale of Rs.5500-9000 is not tenable. (Para 29, 32 and 36) Samir Kumar Majumder Vs. The Union Of India & Ors.: 2023 STPL(Web) 274 SC

Constitution of India, Article 14 – Service Law – Absorption – Continuity in service – Parity – Appellant’s right first of all flows from the Master Circular dated 29.01.1991on completion of three months of continuous service as substitute teacher, the incumbent acquires temporary status – It is also clear that substitutes who have acquired temporary status should be screened by the Screening Committee and not by Selection Board – Under Clause 5.11 of the Master Circular, gaps which may occur in service of substitutes between two engagements should be ignored for the purpose of temporary status on completion of four months service and in case of teachers, on completion of three months service. Further, it is clear that the date of appointment should be the date on which they attained temporary status in the event they are regularly absorbed -Appellant having acquired temporary status on 04.03.1990 is entitled to count his service from 04.03.1990 in view of his absorption in the service as a primary teacher on 02.01.1998 – The appellant being identically situated with the other absorbees in the order of 02.01.1998 could not have been discriminated and denied the benefit of his service from 04.03.1990 to the date of his absorption -Tribunal and the High Court grossly erred in denying the relief by wrongly understanding the orders of this Court and the legal position – Appellant will be entitled to take into account the past service rendered by him as substitute teacher in different spells, from the date of obtaining temporary status (04.03.1990). The appellant should be extended the same benefits as were extended to others, who were granted continuity by the letter of 28.12.1998.(Para 37 to 44) Samir Kumar Majumder Vs. The Union Of India & Ors.: 2023 STPL(Web) 274 SC

Legal maxim – Interest reipublicae ut sit finis litium – which means that in the interest of the State there should be an end to litigation and no party ought to be vexed twice in a litigation for one and the same cause. (Para 35) Samir Kumar Majumder Vs. The Union Of India & Ors.: 2023 STPL(Web) 274 SC

Constitution of India, Article 14 and 226 – Service Law – Unfit for appointment – Non appointment – Post of Constable – Rejected claim for appointment on ground that respondent-petitioner found unsuitable and unfit for appointment despite the latter having truthfully disclosed in his affidavit the fact that he had faced trial in a criminal case which had resulted in his acquittal – Even though the respondent had truthfully declared that he was involved in a criminal case which was decided by the trial Court vide judgement 26th October, 2015 – Observations made in the judgement, quite clearly showed, this was not a case of clean acquittal – Respondent had arrived at a compromise with the complainant and filed an application under Section 320 of the CrPC, based on which the offence under Section 341 IPC was compounded – As for the remaining offences for which the respondent was charged i.e. Section 354(D) of the IPC and Section 11 (D)/12 of the POCSO Act, they were non compoundable and therefore, the matter was taken to trial – The respondent was acquitted by the trial Court primarily on account of the fact that the complainant did not support the case set up by the prosecution and the other prosecution witnesses had turned hostile – Held that the respondent’s plea that he had been given a clean acquittal in the criminal case, is found to be devoid of merits– Mere acquittal of the respondent in the criminal case would not automatically entitle him to being declared fit for appointment to the subject post -The appellant–State Government has judiciously exercised its discretion after taking note of all the relevant factors relating to the antecedents of the respondent – In such a case, even one criminal case faced by the respondent in which he was ultimately acquitted, apparently on the basis of being extended benefit of doubt, can make him unsuitable for appointment to the post of a Constable – The said decision taken by the appellant–State Government is not tainted by any malafides or arbitrariness for the High Court to have interfered therewith – Judgement passed by the learned Single Judge upheld while quashing and setting aside the impugned judgment dated 24th January, 2018, passed by the Division Bench of the High Court. (Para 16 and 19) The State Of Madhya Pradesh And Others Vs. Bhupendra Yadav: 2023 STPL(Web) 275 SC

Haryana Superior Judicial Service Rules, 2007 – Service Law – Direct quota recruitment Higher Judicial Service – General category posts – Selection – Claim for appointment – Initially 14 general category vacancies within the direct quota were advertised, out of which, 5 were filled up by absorption of the Fast Track Court judges in terms of the directions contained in the Brij Mohan Lal (1) & (2) – Adding 4 general category posts which in the meantime fell vacant, all 13 vacancies were duly filled up from the selected candidates – The appellant could not be appointed as he was at serial No.14 of the merit and the posts available were only 13 – The absorption of Fast Track Court judges was done after following the prescribed procedure for the selection – Held that in view of the reasoning given by the respondents for appointing only 13 selected candidates leaving the appellant who was at Sl. No.14, the respondents have justified the appointments and have not acted in an arbitrary manner – The respondents have acted fairly and logically without any malice against the appellant – Do not find any arbitrariness on the part of the respondents – Decision of the Division Bench of the High Court not liable to be disturbed on the above count, more particularly when the appellant has not acquired any indefeasible right to be appointed because he qualified in the selection process. (Para 15 to 17) Sudesh Kumar Goyal Vs. The State Of Haryana & Ors : 2023 STPL(Web) 279 SC

Haryana Superior Judicial Service Rules, 2007 – Service Law – Direct quota recruitment Higher Judicial Service – General category posts – Selection – Claim for appointment against subsequent vacancy – Held that as all the vacancies notified stood filled up initially – However, if one of the selected candidates joins and then resigns, it gives rise to a fresh vacancy which could not have been filled up without issuing a proper advertisement and following the fresh selection process – Division Bench has rightly dealt with the above contention in the light of the precedent of the various decisions of this Court and do not feel that any error has been committed in this context. (Para 18) Sudesh Kumar Goyal Vs. The State Of Haryana & Ors : 2023 STPL(Web) 279 SC

Constitution of India, Articles 14 and 226 – Bihar Civil Service (Judicial Branch) (Recruitment),Rules, 1955, Rule 7(b), 9 – Service Law – Rejection of candidature – Whether the rejection of the candidatures of the appellants due to non-production of the original certificate at the time of interview by the Bihar Public Service Commission is justified? – Held that the factum of eligibility is different from factum of proof thereof – If a person possesses eligibility before the date of actual selection, he cannot be denied benefit because its proof is produced later – Proof is available and true photocopies were on record – The appellants’ candidature could not have been rejected merely because the original was not produced before the Commission at the time of interview in particular when such requirement was not mandatory, in view of the manner in which the Rules are couched – Impugned judgments dated03.11.2021, 04.09.2021 and 19.04.2023 passed by the High Court liable to be set aside – The appellants directed to be accommodated being successful candidate in the 30th Examination and in the 31st Examination. (Para 18,19 and 28) Sweety Kumari Vs. The State Of Bihar And Others: 2023 STPL(Web) 286 SC

Taxation

Income Tax Act, 1961, Section 32, 148, 271 (1)(c),245C (1) – Constitution of India, Article 226 – Income Tax – Claimed depreciation – Notice for reassessment of income – Penalty order –Order of Settlement Commission to grant immunity from prosecution and penalty – Judicial review – Appellant placed material and particulars before the Commission as to the manner in which income pertaining to certain activities was derived and has sought to offer such additional income to tax – Based on such disclosures and on noting that the appellant co-operated with the Commission in the process of settlement, the Commission proceeded to grant immunity from prosecution and penalty as contemplated under Section 245H of the Act – Held that the High Court ought not to have sat in appeal as to the sufficiency of the material and particulars placed before the Commission, based on which the Commission proceeded to grant immunity from prosecution and penalty as contemplated under Section245H of the Act – Having regard to the legislative intent, frequent interference with the orders or proceedings of the Settlement Commission should be avoided –There are limited grounds on which an order or proceeding of the Settlement Commission can be judicially reviewed – The High Court should not scrutinize an order or proceeding of a Settlement Commission as an appellate court – Unsettling reasoned orders of the Settlement Commission may erode the confidence of the bona-fide assessees, thereby leading to multiplicity of litigation where settlement is possible – This larger picture has to be borne in mind – Order of the Settlement Commission dated 04.03.2008 was based on a correct appreciation of the law, in light of the facts of the case and the High Court ought not to have interfered with the same -Judgment passed by the High Court in Writ Appeal whereby the judgment of the learned Single Judge, passed in Writ Petition, remanding the matter to the Settlement Commission to determine afresh, the question as to immunity from levy of penalty and prosecution was affirmed, liable to be set aside – Consequently, the order of the learned Single Judge is also set aside – The Order of the Settlement Commission dated 04.03.2008 restored. (Para 9, 10, 13 and 14) Kotak Mahindra Bank Limited Vs. Commissioner Of Income Tax Bangalore And Anr.: 2023 STPL(Web) 296 SC

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Breach of peace: It must disturb public order, not just personal peace

May 20, 2024 No Comments

Code of Criminal Procedure, 1973 – Sections 145, 146- Breach of peace – Emergency situation – Possession dispute – Civil litigation – Non-application of mind – Proceeding under Section 145 – Attachment under Section 146 – The application under Section 482 of the Code of Criminal Procedure, 1973 challenges the orders by the Executive Magistrate, concerning a dispute under Section 145 of the Code of Criminal Procedure, 1973 and subsequent attachment under Section 146(1) of the same.

The petitioner contests the legality of both orders, asserting that the initiation of the proceeding and the attachment were illegal and an abuse of process. It’s argued that the jurisdiction under Section 145 can only be invoked if there’s a likelihood of a breach of peace, which wasn’t sufficiently demonstrated in this case.

The petitioner highlights that the attachment order was passed ex-parte without affording them an opportunity to respond, which is contrary to the exceptional circumstances required for such an order. Reference is made to legal precedent discouraging parallel criminal proceedings when a civil litigation is pending regarding property possession, emphasizing the binding nature of civil court decrees.

The respondents counter by claiming entitlement to the land based on a partition deed and subsequent court judgments. They argue that emergency circumstances justified the attachment due to the petitioner’s attempt to construct on disputed land.

Legal precedents are cited to emphasize that the existence of an emergency, not just the use of the term “emergency,” warrants attachment under Section 146.

The judgment critically examines the orders and the circumstances leading to them. It observes discrepancies between the assertions made in the complaint and police report, highlighting the absence of clear grounds for apprehension of breach of peace.The judgment reiterates the requirement for a dispute likely to cause a breach of peace under Section 145, emphasizing that it must disturb public order, not just personal peace.

It concludes that the impugned orders suffer from non-application of mind and jurisdictional error, resulting in injustice to the petitioner. Consequently, both orders are quashed, and the petition is allowed. Important Paragraph Numbers of Judgment: (Para 13, 19, 30, 31)

GAUHATI HIGH COURT

2023 STPL(Web) 183 Gauhati

[2024 STPL 1651 Gauhati]

Md. Osman Ali Saikia And Anr. Vs. Chand Mahamod Saikia And 2 Ors.

Crl.Pet. 239 of 2021-Decided on 8-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-183-Gauhati.pdf

Electricity: Outstanding arrears from previous owner

May 20, 2024 No Comments

Constitution of India, Article 226 – Assam Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2004 – Electricity Act, 2003 – Section 43, 49, 50, 56 – Electricity – Outstanding arrears from previous owner – The petitioner, a partnership firm, sought a writ petition under Article 226 challenging a decision by the Assam Power Distribution Company Limited (APDCL) to deny a new electricity connection to their premises due to outstanding arrears from previous electricity bills.

The court directed interim relief for immediate electricity connection, subject to 50% payment of outstanding dues, with the remaining 50% to be paid upon dismissal of the writ petition.

The petitioner participated in an auction sale of a property and purchased a portion of land with a Business Centre cum Market Complex. They subsequently applied for a new electricity connection, which was denied by APDCL citing outstanding dues.

The court referred to the Assam Electricity Regulatory Commission [Electricity Supply Code and Related Matters] Regulations, 2004 and the Electricity Act, 2003. It cited a Supreme Court decision (K.C. Ninan vs. Kerala State Electricity Board) regarding the liability of auction purchasers for previous dues in properties sold on ‘as is where is’ basis.

The court dismissed the writ petition, holding the petitioner liable for outstanding electricity dues as per the auction sale agreement. It directed the petitioner to pay the outstanding dues as per the interim order, with APDCL waiving the accrued interest on the principal dues. (Para 15, 16)

GAUHATI HIGH COURT

2023 STPL(Web) 182 Gauhati

[2024 STPL 1650 Gauhati]

M/S Borah And Companyjiban Phukan Nagar Vs. Assam Power Distribution Company Ltd. And 3 Ors.

WP(C) 989 of 2014-Decided on 7-11-2023

2023 STPL(Web) 182 Gauhati

Executive instructions cannot nullify statutory rules

May 16, 2024 No Comments

Assam Bonded Warehouse Rules, 1965 – Rule 7 – Refund of Charges – Administrative Order – Statutory Rules – The present writ petition contested an order issued by the Secretary to the Government of Assam, Excise Department, reintroducing establishment charges under Rule 7 of the Assam Bonded Warehouse Rules, 1965, despite their abolition by the Assam Bonded Warehouse (Amendment) Rules, 2005.

The Court held that executive instructions cannot nullify statutory rules. Citing the principle established in K. Kuppusamy case, it ruled that until a rule is amended, it remains applicable. Consequently, the impugned order was set aside as ultra vires. Regarding refund, relying on Mafatlal Industries Ltd. case, the Court directed the petitioner to present evidence to the Excise Commissioner, who would determine entitlement to refund within four months, considering whether the petitioner passed on the burden of charges to retailers. (Para 15)

GAUHATI HIGH COURT

2023 STPL(Web) 181 Gauhati

[2024 STPL 1649 Gauhati]

M/S Centenary Distilleries P Ltd. Vs. State Of Assam And 2 Ors.

WP(C) 2875 of 2014-Decided on 7-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-181-Gauhati-2.pdf

Land Disputes: Binding nature of Civil Court’s decree on Revenue Courts

May 16, 2024 No Comments

Land Disputes – Binding nature of Civil Court’s decree on Revenue Courts – The instant writ petition challenged a judgment of the Assam Board of Revenue concerning a land dispute. The dispute pertained to a plot of land associated with the Dargah of Pir Saheb. The Civil Court in Title Suit No.176/1978 had decreed in favor of the Petitioners’ predecessor, declaring their right, title, and possession over the land. The State of Assam was restrained from interference. Subsequently, the Settlement Officer issued a Khatian in favor of the Petitioners’ predecessor, and a new Dag was created. However, the Assam Board of Revenue, in its impugned judgment, disregarded the Civil Court’s decree and cancelled the Khatian issued to the Petitioners’ predecessor.

This action was deemed contrary to established principles, as Civil Court decrees are binding on Revenue Courts. Therefore, the High Court set aside the impugned judgment, restoring the Khatian to the Petitioners’ predecessor. (Para 12)

GAUHATI HIGH COURT

2023 STPL(Web) 180 Gauhati

[2024 STPL 1648 Gauhati]

Sayed Moinuddin Ahmed Vs. State Of Assam And 3 Ors.

WP(C) 4701 of 2013-Decided on 7-11-2023

https://stpllaw.in/wp-content/uploads/2024/05/2023-STPLWeb-180-Gauhati.pdf

Supreme Court Digest, 15 to 30 September 2023

Stpl law

Supreme Court Digest, 15 to 30 September 2023

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Service Law

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Breach of peace: It must disturb public order, not just personal peace

Electricity: Outstanding arrears from previous owner

Executive instructions cannot nullify statutory rules

Land Disputes: Binding nature of Civil Court’s decree on Revenue Courts

Recent Articles

Contract: Demurrage not allowed

Breach of peace: It must disturb public order, not just personal peace

Electricity: Outstanding arrears from previous owner

Executive instructions cannot nullify statutory rules

Land Disputes: Binding nature of Civil Court’s decree on Revenue Courts