Supreme Court Digest: 16 to 31 July, 2023

Stpl law

August 10, 2023
5:34 am

Supreme Court Digest: 16 to 31 July, 2023

Nominal Index

Anbazhagan Vs. State Represented By The Inspector Of Police
2023 STPL(Web) 74 SC : Culpable Homicide – Nature of offence

Arvind Kumar Vs. State Of Nct, Delhi
2023 STPL(WEB) 69 SC : Murder – Nature of offence

Ashok Kumar Vs. New India Assurance Co. Ltd.
2023 STPL(Web) 122 SC : Consumer – Theft of insured vehicle

Md. Asfak Alam Vs. State of Jharkhand & Anr.
2023 STPL(Web) 123 SC : Anticipatory bail – Matrimonial dispute

Bhim Rao Baswanth Rao Patil Vs. K. Madan Mohan Rao
2023 STPL(Web) 80 SC : Election petition – Application for rejection of petition

Bharatiya Kamgar Karmachari Mahasangh Vs. M/S. Jet Airways Ltd.
2023 STPL(Web) 86 SC : Appropriate authority – Empowered to issue standing order under Act, 1946

Boini Mahipal And Anr. Vs. State of Telangana
2023 STPL(Web) 71 SC : Hurt – Case not made out

B.P. Naagar & Ors. Vs. Raj Pal Sharma
2023 STPL(Web) 115 SC : Deficient Court fee – Suit valuation – Jurisdiction

Central Bureau Of Investigation Vs. Shyam Bihari & Others
2023 STPL(WEB) 68 SC : Murder – Acquittal Upheld

Chennupati Kranthi Kumar Vs. State Of Andhra Pradesh
2023 STPL(Web) 87 SC : Passport – Release of

Commissioner of Service Tax-Iv Vs. Prime Focus Ltd.
2023 STPL(Web) 107 SC : Service Tax – Video-Tape Production

Dilip Kumar Vs. Brajraj Shrivastava & Anr.
2023 STPL(Web) 137 SC : Criminal Procedure – Magistrate inquiry in Private Complaint

Government Of National Capital Territory Of Delhi Vs. Union Of India
2023 STPL(Web) 73 SC : Vires of Ordinance 2023 – Challenge as to

Gurbachan Singh (Dead) Through Lrs Vs. Gurcharan Singh (Dead) Through Lrs And Ors.
2023 STPL(Web) 84 SC : Second appeal – Substantial question of law

No.15138812y L/Nk Gursewak Singh Vs. Union Of India
2023 STPL(Web) 89 SC : Murder – Nature of offence

Ganesh Shivkumar Sagar Vs. State Of Gujarat
2023 STPL(Web) 111 SC : Bail – Crypto currency fraud

Gostho Behari Das Vs. Dipak Kumarsanyal& Ors.
2023 STPL(Web) 112 SC : Contempt of Court – Suspension of license to practice medicine

Hem Raj Vs. New India Assurance Co. Ltd.
2023 STPL(Web) 85 SC : Insurance – Non-settlement of third party claim

Indra Bai Vs. Oriental Insurance Company Ltd. & Another
2023 STPL(WEB) 67 SC : Compensation – Total disablement

M/S J.P. Lights India Vs. Regional Director E.S.I. Corporation, Bangalore
2023 STPL(Web) 169 SC : Employees State Insurance – Applicability of Law

Ketan Kantilal Modi Vs. Union Of India
2023 STPL(Web) 118 SC : Reward to informer – Tax evasion

Labour Law Association Vs. Union of India
2023 STPL(Web) 105 SC : Appointment to Industrial Tribunals – Directions issued

Lokendra Gurjar Vs. State Of Madhya Pradesh & Ors.
2023 STPL(Web) 103 SC : Seeking constitution of a bench – Dismissed with Cost

Mahendra & Ors. Vs. Rajesh Kumar Singh & Anr.
2023 STPL(Web) 128 SC : Delay in release – Cost imposed

Manoj Kumar Vs. Delhi Urban Shelter Improvement & Ors.
2023 STPL(Web) 101 SC : Urban Shelter Improvement Board – Nearby Areas

Padamaja Rani Vs. State of Telangana
2023 STPL(Web) 127 SC : Sentence – Consecutive

Pramod Sinha Vs. Suresh Singh Chauhan & Ors.
2023 STPL(Web) 138 SC : MACT – Claimant choice to Jurisdiction of MACT

Paschimanchal Vidyut Vitran Nigam Ltd. Raman Ispat Private Limited & Ors.
2023 STPL(WEB) 66 SC : Insolvency resolution process – Distribution of assets

Yuvaprakash Vs. State Rep. By Inspector Of Police
2023 STPL(Web) 70 SC : POCSO – Age Determination of victim

Poonam Ankur Pawar Vs. Ankur Ashokbhai Pawar
2023 STPL(Web) 121 SC : Transfer of Suit – Effect of Non-appearance of respondent

Ram Kishan (Deceased) Through Legal Representatives & Anr. Vs. Manish Kumar & Anr.
2023 STPL(Web) 81 SC : Application for dismissal of suit – Not allowed

Raheem Shah & Anr. Vs. Govind Singh & Ors.
2023 STPL(Web) 110 SC : Condonation of Delay – Allowed

Rohit Bishnoi Vs. State Of Rajasthan
2023 STPL(Web) 82 SC : Bail – Challenge as to

Santosh Pandurang Parte Vs. Amar Bahadur Maurya And Anr.
2023 STPL(Web) 119 SC : Bail – Sample of Narcotic not sent to Chemical Analyzer

Sandeep Kumar Vs. The State Of Haryana & Anr.
2023 STPL(Web) 113 SC : Criminal Procedure – Summoning as additional evidence

Seema Girija Lal & Anr. Vs. Union Of India & Ors.
2023 STPL(Web) 104 SC : Right of Persons with Disabilities Act – Implementation of Provisions

Shatrughan Vs. State Of Chhattisgarh
2023 STPL(Web) 72 SC : Murder – Circumstantial evidence

State Of Gujarat Etc. Vs. Choodamani Parmeshwaran Iyer & Anr.
2023 STPL(Web) 102 SC : Anticipatory bail – Goods and Services Tax

State Of Uttar Pradesh Vs. Mohd. Afzal & Ors.
2023 STPL(Web) 106 SC : Bail – Self Contradictory order of High Court

State of Bihar Vs. Ghanshyam Prasad Singh
2023 STPL(Web) 108 SC : Summoning of Senior functionaries of Govt – Order stayed

State of Tripura & Anr. Vs. Justice (Retd.) Alok Baran Pal
2023 STPL(Web) 109 SC : Precedent – Not precedent in any other case

State Of Himachal Pradesh & Ors. Vs. Meer Baksh
2023 STPL(Web) 79 SC : Expression ‘ evacuee’ – Evacuee property

State of West Bengal Vs. Suvendu Adhikari
2023 STPL(Web) 120 SC : Bengal Clashes – Investigation of Scheduled offences

Ex Sepoy Madan Prasad Vs. Union Of India And Others
2023 STPL(Web) 114 SC : Service Law – Over-staying of leave

Teesta Atul Setalvad Vs. State Of Gujarat
2023 STPL(Web) 77 SC : Bail – Granted

Universal Sompo General Insurance Co. Ltd. Vs. Suresh Chand Jain
2023 STPL(Web) 88 SC : Consumer – When appeal not lie in Supreme Court

Vernon Vs. State of Maharashtra & Anr.
2023 STPL(Web) 116 SC : Unlawful Activities – Evidence analysis

Yogendra Prasad Singh Vs. Ram Bachan Devi
2023 STPL(Web) 124 SC : Sale deed – Cancellation of sale deed

Subject Index

Civil

Insolvency and Bankruptcy Code, 2016, Section 33, 35, 36(3), 53(1)(f) , 238 – Insolvency and Bankruptcy Board of India(Liquidation Process)Regulations, 2016, Regulation 21, 21A, 47- Electricity Act, 2003, Sections 42, 45, 56, 173, 174 – Uttar Pradesh Electricity Supply Code, 2005, Clauses 4.3 and 6.15–Companies Act, 2013, Section 77 – General Clauses Act, 1897, Section 3(8) – Insolvency resolution process – Distribution of assets – Company under liquidation – Secured creditor – ‘Waterfall mechanism’–Challenge to the order of the National Company Law Appellate Tribunal which rejected its appeal against an order of the National Company Law Tribunal which allowed an application directing the District Magistrate and Tehsildar, Muzaffarnagar to immediately release property (which was previously attached at the request of the appellant) in favour of the liquidator of the respondent Raman Ispat Pvt. Ltd.- “corporate debtor” for enabling its sale, and after realisation of its value, for distributing the proceeds in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016 -Corporate debtor entered into an agreement with appellant-PVVNL for supply of electricity on 11.02.2010 which provided that outstanding electricity dues would constitute a ‘charge’ on its assets – This was in accordance with Clause 4.3(f)(iv) of the 2005 Code–PVVNL undoubtedly has government participation – However, that does not render it a government or a part of the ‘State Government’ – Its functions can be replicated by other entities, both private and public – The supply of electricity, the generation, transmission, and distribution of electricity has been liberalized in terms of the 2003 Act barring certain segments – Private entities are entitled to hold licenses – In this context, it has to be emphasized that private participation as distribution licensees is fairly widespread – Held that in the present case, dues or amounts payable to PVVNL do not fall within the description of Section 53(1)(f) of the IBC – Held that appeal deserves to fail – At the same time, the liquidator directed to decide the claim exercised by PVVNL in the manner required by law – It shall complete the process within 10 weeks from the date of pronouncement of this decision, after providing such opportunity to the appellant, as is necessary under law. (Para 42, 47 and 57) Paschimanchal Vidyut Vitran Nigam Ltd. Raman Ispat Private Limited & Ors. : 2023 STPL(WEB) 66 SC

Administration of Evacuee Property Act, 1950, Section2(d),(f) – Expression ‘ evacuee’ – Evacuee property – Costs – Admitted position that the said ‘S’ never left India and therefore, he cannot be an evacuee within the meaning of the 1950 Act – Notwithstanding the admitted position that this gentleman never left India and notwithstanding a fair concession based on facts made by the learned Additional Advocate General, the State has chosen to file appeal an against the orders of the learned Single Judge and the Division Bench – This action of the State deprecated. – Appeal liable to be dismissed with the costs of Rs.25,000/-to be payable to the Writ Petitioners before the High Court. (Para 4 to 7) : State Of Himachal Pradesh & Ors. Vs. Meer Baksh : 2023 STPL(Web) 79 SC

Civil Procedure Code, 1908, Section 151 – Application for dismissal of suit – Not allowed – Respondent herein instituted Civil Suit of 2018 much before the filing of Writ Petition (C) of 2020 and also SLP (C) of 2020 by the appellant – First respondent who is the plaintiff in Civil Suit was not made a party either in the Writ Petition of 2020 or in SLP (C) of 2020 – Order dated 25.09.2020 in Praveen Kumar’s case (supra) would reveal that it was without making any observation that this Court permitted the appellant/petitioner to submit building plan for sanction and consequently, directed the DCB to take a decision thereon in accordance with law and the prevailing building regulations and bye laws – Order dated 25.09.2020 revealed that this Court had also taken note of the pendency of Civil Suit of 2018 seeking injunction against the appellant herein and also the sealing of the subject property – After, taking note of the fact that appellant who initially challenged the jurisdiction of the DCB abandoned the same and accepted its jurisdiction and then sought to withdraw the SLP, but not by way of withdrawal simpliciter, – SLP of 2020 was disposed of with a direction to the DCB to consider application for sanction of building plan in accordance with law and the prevailing building regulations and bye laws – Appellant herein did not seek for any relief as relates the pending Civil Suit of 2018 before this Court and this Court also did not make any observation in respect of the pending suit – Contention on behalf of appellant that in the light of the order dated 25.09.2020, the Civil Suit of 2018 cannot be entertained any further repelled – Find absolutely no infirmity or illegality in the order dated 11.11.2021 passed by the High Court in confirming the order of dismissal of the Trial Court on the application of the appellant for dismissal of Civil Suit of 2018, as per order dated 13.04.2021. (Para 9 and 10) Ram Kishan (Deceased) Through Legal Representatives & Anr. Vs. Manish Kumar & Anr. : 2023 STPL(Web) 81 SC

Civil Procedure Code, 1908, Order 14 Rule 5 – Deletion of issue – Challenge as to – As per the order impugned before the High Court, the Trial Court allowed the application by the plaintiff/the first respondent under Order 14, Rule 5, CPC, for deletion of issue Nos.1 and 2 framed in Civil Suit of 2018 and deleted the said issues – The deleted first issue was whether the suit property falls within the jurisdiction of DCB – Appellant who was disputing the jurisdiction of DCB has accepted the jurisdiction of DCB over the subject land – When the said factum of acceptance of the jurisdiction of DCB by the appellant was recorded by this Court in the order dated 25.09.2020, the petitioner cannot, legally, have any grievance or objection regarding the deletion of the aforesaid issue relating the jurisdiction of DCB. (Para 11) Ram Kishan (Deceased) Through Legal Representatives & Anr. Vs. Manish Kumar & Anr. : 2023 STPL(Web) 81 SC

Civil Procedure Code, 1908, Order 14 Rule 5 – Cantonments Act, 2006, Section 250 – Bar of jurisdiction – Deletion of issue – Challenge as to – Issue No.2 that was deleted was whether the provisions of Section 250 of the Act, 2006 would bar the suit filed by the first respondent/the plaintiff – After analysing the said provision, the Trial Court negatived the objection of the appellant that it would bar the suit – Going by the provision of Section 250 the bar would apply in respect of any order or notice unless an appeal under Section 340 of the said Act is preferred and the same is disposed of by the Appellate Authority under sub-section 3 of Section 343 of the Act – Factual finding of the Trial Court is that no notice or order was issued against the first respondent herein/the plaintiff so as to attract the bar under Section 250 of the Act – This factual finding based on the provisions under Section 250 has been confirmed by the High Court as per the impugned judgment dated 10.04.2023 –Held that there is absolutely no material on record which would go to show that the said factual finding viz., there is no notice or order issued against the first respondent/the plaintiff by the Cantonment Board under the said Act, is factually incorrect – In view of the provisions under the said Section and the aforesaid factual finding, find no reason to interfere with the deletion of issue No.2, in the factual background obtained – Civil Appeals liable to be dismissed. (Para 12 and 13) Ram Kishan (Deceased) Through Legal Representatives & Anr. Vs. Manish Kumar & Anr. : 2023 STPL(Web) 81 SC

Constitution of India, Article 32 – Writ jurisdiction – De-sealing of property – Prayer for – Writ petition filed seeking issuance of writ of mandamus or appropriate writ or direction in the nature of mandamus directing the DCB to de seal the subject property – Paragraph 7 of Annexure P-3 order dated 25.09.2020, marked as such in the captioned Writ Petition would reveal that during the course of the said proceedings Interlocutory Application No.93630 of 2020 was filed therein on behalf of the writ petitioner, who is also the appellant in Civil Appeal Nos. 4538-4539 of 2023, the prayers made in the said IA prayer No. ‘d’ therein reads “d) Direct the DCB de-seal the property of the Petitioner, on the approval of the Petitioners’ building plan” – Writ petitioner had sought for de-sealing the property only on the approval of its building plan – When it was not sanctioned the writ petitioner cannot be allowed, now, to contend that the DCB got an obligation to de-seal the property of the writ petitioner – Prayer of the petitioner to issue a writ of mandamus in the absence of any legal right at this stage, cannot be granted -With respect to the fact that the question of de-sealing is also a matter which is intertwined with the issues arising for consideration in the pending Civil Suit, in view of the attendant circumstances -Held that in the light of Annexure P-3 order dated 25.09.2020, the writ petitioner is not legally entitled to seek such a prayer at this stage – Writ Petition liable to be dismissed. (Para 14 to 16) Ram Kishan (Deceased) Through Legal Representatives & Anr. Vs. Manish Kumar & Anr. : 2023 STPL(Web) 81 SC

Civil Procedure Code, 1908, Section 100 – Punjab Courts Act, 1918, Section 41 – Second appeal – Substantial question of law – Non-formulation of –Contention that the High Court has transgressed the scope of second appeal inasmuch as substantial question of law not formulated–Held that the formulation or lack thereof of the Court having framed substantial questions of law is not one of relevance to the instant dispute and therefore does not come to the aid of the Appellant – This case arises out of a dispute in Punjab and therefore, the rigors of section 100 CPC do not apply – It has been held by this court that in appeals arising out of the state of Punjab or the State of Haryana, courts are not required to frame substantial questions of law as per section 100 of CPC – The Constitution bench in Pankajakshi (Dead) through LRs v. Chandrika[(2016) 6 SCC 157] had held Kulwant Kaur v. Gurdial Singh Mann[(2001) 4 SCC 262] which held section 41 of the Punjab Courts Act, 1918 to be repugnant to section 100, CPC to be bad in law, thereby implying that section 41 of the Punjab Court Act holds as good law – Learned single Judge sitting in second appellate jurisdiction cannot be faulted for not having framed substantial questions of law under section 100, CPC. (Para 7 to 11) Gurbachan Singh (Dead) Through Lrs Vs. Gurcharan Singh (Dead) Through Lrs And Ors. : 2023 STPL(Web) 84 SC

Civil Procedure Code, 1908, Section 100 – Punjab Courts Act, 1918, Section 41 – Second appeal – Co-owner of Undivided property – Contended that ‘F’ as a coowner sold a part of his share in an undivided property and therefore the purchaser only acquires such share but not the right to possess – It is only after such a joint holding is partitioned and a right of exclusive possession arises – It is submitted that a cosharer has a right to substitute himself in place of a stranger so as to prevent such a person from entering into family property – Statements of DW3 shows that father of the Appellant had indeed partitioned the property during his lifetime – In such situation selling a part of his share in an undivided property, is a question that does not arise -There is nothing on record to reflect any effort having been made by him to substitute himself in place of the Respondents in buying the 4 marlas of land from ‘F’ in order to keep a stranger, namely ‘G’ from entering into family owned property – Had the Appellant made any such effort and the same would be reflected from record, then it could have been argued that he has a right to exclude the Respondents. (Para 12 and 13) Gurbachan Singh (Dead) Through Lrs Vs. Gurcharan Singh (Dead) Through Lrs And Ors. : 2023 STPL(Web) 84 SC

Civil Procedure Code, 1908, Section 100 – Punjab Courts Act, 1918, Section 41 – Second appeal – Concurrent findings of fact – Interference by High Court – Objection taken by the Appellant is the fact of the impugned judgement entering into a re-appreciation of evidence – Held that while it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court – However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone – Cross-examination portion of the statement of DW3 suggests that both the courts below had ignored material evidence on the aspect of property having been divided by the father of the Appellant – The Appellant has himself admitted to having sold one plot in favour of ‘A’, claiming himself to be the exclusive owner of such property – A material contradiction then arises between the statement and one made earlier where he denies the property ever having been partitioned by his father in favour of himself and his brother – DW3 has also, on oath testified to the factum of partition of the property by father of the Appellant – Although in the later part of his testimony he has tried to go back on his earlier statement and states that it was incorrect that the father of the Appellant had effected partition within his lifetime – However, a conjoint reading of the statement of DW1 in regards to selling a portion of his property to ‘A’ as well as the examination in chief portion of the testimony of DW 3 suggests that, ‘S’ had indeed partitioned the property – Hence, findings returned by the High Court in the impugned judgment cannot be faulted. (Para 16) Gurbachan Singh (Dead) Through Lrs Vs. Gurcharan Singh (Dead) Through Lrs And Ors. : 2023 STPL(Web) 84 SC

Delhi Urban Shelter Improvement Board Act, 2010 – Section 2(f), 2(g) – Urban Shelter Improvement Board – Nearby Areas – According to the petitioners, the three kilometer radius to understand the expression “nearby areas”, as was found by the learned Single Judge and Division Bench, should have extended to at least five kilometer distance to have a wider coverage of the concerned area. Held: We have also examined the basis on which the High Court has decided to take into account the three kilometer distance to understand the coverage of “nearby areas”. We find no infirmity therein warranting our interference under Article 136 of the Constitution. (Para 1, 3) Manoj Kumar Vs. Delhi Urban Shelter Improvement & Ors. : 2023 STPL(Web) 101 SC

Summoning of Senior functionaries of Govt – Order stayed – Order of personnel appearance of Senior officers before High Court – Plea that directions which were issued have been complied with and the respondent has no grievance with regard to any of the action or inaction of the State Officers. Held: In a matter wherein there is a patent disregard and disobedience to the directions issued by the Court, the Court would be justified in securing the presence of the officers. However, such a practice should not be adopted as a routine. The Officers of the State Governments are required to discharge their duties towards the citizens of the country. Issuing such directions at the drop of the hat, rather than upholding the majesty of the Court, undermines it. Order of High Court stayed. (Para 3 – 10) State of Bihar Vs. Ghanshyam Prasad Singh : 2023 STPL(Web) 108 SC

Constitution of India, Article 227 read with Section 115 – Civil Procedure Code, 1908, Section 96, Order 2 Rule 2(b), Order 6 Rule 17; Order 7 Rule 11, Order 43 – Court Fees Act, 1899, Section 7 (vi) (d) read with entry 17(vi) of Schedule II – Suits Valuation Act, 1887, Section 8 –Deficient Court fee – Suit valuation – Jurisdiction – Amendment of plaint – Rejection of plaint – Amendment sought for that the values for the purposes of Court fee and jurisdiction are the same -As per order dated 01.07.2017, the Trial Court held that the case of the plaintiff/the respondent herein did not fall in any of the carved out exceptions in Section 7 of the Court Fees Act, and furthermore, it would reveal that the very contention of the plaintiff before the Trial Court was that the suit was valued in terms of Section 7 (vi) (d) read with entry 17(vi) of Schedule II of the Court Fees Act as applicable to Delhi and this contention was repelled – Despite all the aforesaid circumstances and involvement of many questions of relevance and importance, without even referring to the amendment sought before the High Court, it only held that the petitioner is permitted to amend the plaint – If what was actually prayed by this plaintiff/respondent before the Trial Court by way of amendment was the one (referred to hereinbefore) which stands granted as per the impugned order of the High Court – A question may crop up whether the question of ad valorem Court fee would survive for consideration thereafter -Another question may also crop up for consideration whether the Court of Additional District Judge could proceed with the suit further when once the amendment is allowed as above and whether, the suit, thereafter, be presented before the lowest court having the jurisdiction – Impugned order of the High Court would reveal that none of the above and other allied questions were considered by the High Court though such aspects were gone into by the Trial Court – Held that do not think it proper to consider all the said questions in this appeal and that it is an eminently fit case where the matter is remanded for fresh consideration by the High Court – Ordered accordingly – To enable the High Court to do so, the impugned order liable to be set aside – Liberty given to both sides to take all legally available contentions before the High Court, for a proper decision in the matter. (Para 17 to 20) B.P. Naagar & Ors. Vs. Raj Pal Sharma : 2023 STPL(Web) 115 SC

Reward to informer – Tax evasion – Plea for enhancement of reward as reward granted not as per policy – Supreme Court observed that there is no application of mind in allowing reward – Direction to committee to give opportunity of being heard to the appellant and then decide whether the appellant is entitled to any amount over and above already paid to him. Needless to add that if the committee finds that appellant is entitled to additional amount, the Committee will recommend payment of reasonable interest to the appellant. Appropriate decision shall be taken by the Committee within a period of six months from today and shall be communicated to the appellant. (Para 7, 8) Ketan Kantilal Modi Vs. Union Of India : 2023 STPL(Web) 118 SC

Transfer of Suit – Effect of Non-appearance of respondent – Matrimonial Dispute – Petition for transfer by wife – Non-appearance by Husband – Effect of – Held: We are of the view that it cannot be said that nonparticipation in a proceeding of a restitution of conjugal rights, of the party who seeks for transfer of such proceeding is absolutely impact less. In fact, it has civil consequences as is evident from the aforesaid provision. Further held that taking into account the distance of the court where the case sought to be transferred is pending and the place where the petitioner-wife is presently residing, we are inclined to allow the captioned transfer petition. Consequently, Transfer Petition is allowed. (Para 2, 3) Poonam Ankur Pawar Vs. Ankur Ashokbhai Pawar : 2023 STPL(Web) 121 SC

Specific Relief Act, 1963, Section 31, 34 – Transfer of Property Act, 1882, Section 54, 55(4)(b) –Sale deed – Cancellation of sale deed – Suit for declaration – On overall reading of the Sale Deed, it is apparent that under the Sale Deed, the entire right, title and interest of the first defendant in the suit property has been transferred to the plaintiff by the said sale deed – At the highest, as per subsection (4)(b) of Section 55 of the 1882 Act, the first defendant was entitled to have a charge on the suit property for the amount of consideration which was not paid by the plaintiff – Even this provision may not help the first defendant since the plaintiff has taken over the suit property with liabilities as set out in the Sale Deed – The creditors of the first defendant can, therefore, proceed against the suit property – Once it is held that the title and ownership passed on to the plaintiff on the date of Sale Deed, it is not necessary to go into the question whether the appellant has discharged liabilities of the loan especially when the first or second defendants did not file a counterclaim for payment of the consideration payable under the Sale Deed – If it was the case of the first defendant that there was no transfer of title under the said Sale Deed, there was no reason for him to unilaterally execute a document of cancellation of the sale deed – Such a unilateral cancellation deed was not binding on the plaintiff as he was not a consenting party – The second defendant will not get any right by virtue of the gift deed as the first defendant had no transferable title – As the ownership of the plaintiff is proved, the decree for possession must follow – There was no counterclaim made by the first or second defendant for claiming alleged unpaid consideration – Impugned judgment and order passed by the High Court liable to be is quashed and set aside and the decree passed by the Trial Court in Title Suit restored. (Para 16 to 18) Yogendra Prasad Singh Vs. Ram Bachan Devi : 2023 STPL(Web) 124 SC

Words and phrases – The words “khubzul badlain” –Held the practice of ta khubzul badlain (of title passing on exchange of equivalents) is prevalent only in Bihar – The practice of ta khubzul badlain in Bihar recognises that a duly executed sale deed will not operate as a transfer in praesenti but postpones the actual transfer of title, from the time of execution and registration of the deed, to the time of exchange of equivalents, that is, registration receipt and the sale consideration, if the intention of the parties was that title would pass only on payment of entire sale consideration. As a result, until and unless the duly executed and registered sale deed comes into the possession of the purchaser, or until the right to receive the original sale deed is secured by the purchaser by obtaining the registration receipt, the deed of sale remains merely an agreement to be performed and will not be a completed sale – The use of the expression ta khubzul badlain in a sale deed by itself will not be determinative of the true nature of the transaction – It cannot be read in isolation – All the terms and conditions and recitals in the document will have to be considered to decide the real nature of the transaction. (Para 13) Yogendra Prasad Singh Vs. Ram Bachan Devi : 2023 STPL(Web) 124 SC

Constitution Law

Government of National Capital Territory of Delhi (Amendment) Ordinance 2023–Government of National Capital Territory of Delhi Act 1991, Section 3A- Constitution of India, Articles 239-AA(3)(b) and 239-AA(7)–Vires of Ordinance 2023 – Challenge as to – Held that the disposal of the writ petition requires Court to answer a substantial question of law as to the interpretation of the Constitution – Following questions of law referred to a Constitution Bench:

(i) What are the contours of the power of Parliament to enact a law under Article 239-AA(7); and

(ii) Whether Parliament in the exercise of its power under Article 239-AA(7) can abrogate the constitutional principles of governance for NCTD.

Registry directed to place the papers of this petition before the Chief Justice of India on the administrative side for the constitution of a Constitution Bench to answer the questions identified above and for the disposal of the petition. IA seeking a stay of the NCT Ordinance dismissed.(Para 16 and 17) Government Of National Capital Territory Of Delhi Vs. Union Of India : 2023 STPL(Web) 73 SC

Right of Persons with Disabilities Act – Implementation of Provisions – Various directions issued including notifying of rules to appointment of commissioners. (Para 5) Seema Girija Lal & Anr. Vs. Union Of India & Ors. : 2023 STPL(Web) 104 SC

Appointment to Industrial Tribunals – Directions issued – Search-cum-Selection Committee (SCSC), Chaired by Supreme Court Judge, has carried out the selection process and has made nine recommendations – Direction to the Union Government to complete the process of appointing judicial officers to the vacant seats of the Central Government Industrial Tribunals before August 31, 2023. (Para 1, 4) Labour Law Association Vs. Union of India : 2023 STPL(Web) 105 SC

Precedent – Not precedent in any other case – Keeping in view the peculiar facts and circumstances in this case and not treating the same as a precedent for any other case but see no reason to interfere with order. (Para 1) State of Tripura & Anr. Vs. Justice (Retd.) Alok Baran Pal : 2023 STPL(Web) 109 SC

Compensation

Employee’s Compensation Act, 1923, Section 2(1)(I), 4(1)(b), 30 – Compensation – Total disablement – Injury Case – Substantial question of law – On the basis of medical certificate provided by the Board, the Commissioner found the appellant unfit for labour inasmuch as there was complete loss of grip in appellant’s left hand – Prior to the accident, the appellant worked as a loading/unloading labourer – Even if she could use her right hand, the crux is whether she could be considered suitable for performing her task as a loading/unloading labourer – Such a task is ordinarily performed by using both hands – No material on record from which it could be inferred that the appellant was skilled to perform any kind of job by use of one hand – It is also not a case where the appellant had the skill to perform her job by using machines which the appellant could operate by using one hand – Held that when the Board had certified that the appellant was rendered unfit for labour, there was no perversity in the decision of the Commissioner in awarding compensation by treating the disability as total on account of her functional disability – Consequently, no question of law, much less a substantial one, arose for consideration by the High Court so as to allow the appeal in exercise of power under Section 30 of the Act – High Court erred in partly setting aside the order of the Commissioner and assessing the disability as 40% instead of 100%,as assessed by the Commissioner – Judgment and order of the High Court liable to be set-aside – The order of the Commissioner is restored. (Para 31 and 32) Indra Bai Vs. Oriental Insurance Company Ltd. & Another : 2023 STPL(WEB) 67 SC

Motor Vehicles Act, 1988 – Section 166(2) – MACT – Claimant choice to Jurisdiction of MACT – Transfer petition by defendant – Held: Sub-section (2) of Section 166 provides an option for the claimants to approach the MACT within the local limits of whose jurisdiction they (claimants) reside or carry on business or the defendant resides. The claimants having chosen the option to approach the MACT, Farrukhabad at Fatehgarh, U.P., a forum that law permits them to choose, no grievance can be raised by the petitioner. The contention is misconceived – Petition dismissed. (Para 4) Pramod Sinha Vs. Suresh Singh Chauhan & Ors.: 2023 STPL(Web) 138 SC

Transfer of Case – Language Problem – Transfer of MACT case from UP to West Bengal – Plea that the petitioner are from Siliguri, language could be a barrier – Held: It is no doubt true that people speak different languages. There are at least 22 (twenty-two) official languages. However, Hindi being the national language, it is expected of the witnesses who would be produced by the petitioner before the MACT, Fatehgarh, U.P. to communicate and convey their version in Hindi. If the contention of the petitioner is to be accepted, it is the claimants who would be seriously prejudiced not being in a position to communicate and convey their version in Bengali. No case having been set up for transfer – Transfer Petition dismissed. (Para 5) Pramod Sinha Vs. Suresh Singh Chauhan & Ors.: 2023 STPL(Web) 138 SC

Consumer

Consumer Protection Act,1986, Section 2(1)(g) and 14(1)(d) – Insurance – Non-settlement of third party claim – Deficiency in service – Costs – District Forum had specifically referred to medical bills at Exhibits C-19 to C-28 and had directed the insurance company to release the amount found admissible to the complainant-appellant – The appellant herein was naturally under the impression that the amounts covered under the medical bills would also be payable – Even, the State Commission had stated to the same effect that the claims as per the terms and conditions incorporated in the insurance policy had to be release diffound admissible and to the extent of entitlement of the insured -However, the NCDRC, on the basis of the submission of the learned counsel for the insurer, disallowed the disbursement of the medical bills on the premise that there was no evidence on record and that the appellant herein had not contested the Order of the District Forum before the State Commission – Held that the submissions made on behalf of the insurance company before the NCDRC are contrary to the evidence on record as are sult of which the appellant has been not only deprived of the aforesaid amount spent by him towards medical expenses owing to the injuries sustained by the injured Ram Parshad Tharu in the accident in respect of which there is a third-party insurance coverage, but also has been constrained to approach this Court – Stand of the insurer in this case held to be not fair and just – That portion of the Order of the NCDRC disallowing indemnification of the amount spent towards medical expenses by the appellant-insured liable to be set aside -Respondent-insurance company directed to pay the amount, Rs.4,09,000/- (Indian Rupee) in terms of Exhibits P-9 toP-28 with interest at the rate of 7% per annum from the date of filing of the complaint before the District Forum till its realisation -A nominal cost of Rs.30,000/- imposed payable to the appellant -The aforesaid amounts shall be disbursed to the appellant within a period of one month. (Para 14 to 16) Hem Raj Vs. New India Assurance Co. Ltd. : 2023 STPL(Web) 85 SC

Constitution of India, Article 136, 227 – Consumer Protection Act, 1986, Section 17, 21(a), 23 – Consumer Protection Act, Section 58(1)(a)(i) or 58(1)(a)(ii) – Consumer – When appeal not lie in Supreme Court – Insurance Policy – Theft insurance claim – Repudiation –Special Leave Petition – Appellate jurisdiction –Against order of NCDRC – Whether Apex Court should entertain this petition seeking special leave to appeal under Article 136 of the Constitution directly against the order passed by the NCDRC in exercise of its appellate jurisdiction or relegate the petitioner to avail the remedy of filing a writ petition under Article 226 of the Constitution or a petition invoking supervisory jurisdiction of the jurisdictional High Court under Article 227 of the Constitution? – Appeal before the NCDRC was against the order passed by the SCDRC under Section 17(1)(a)(i) of the Act 1986 – Such appeal to the NCDRC was maintainable, as provided under Section 21(a)(ii) of the Act 1986 – As per Section 23 of the Act 1986, any person, aggrieved by an order made by the NCDRC in exercise of its powers conferred by Section 21(a)(i), may prefer an appeal against such order to this Court – Therefore, an appeal against the order passed by the NCDRC to Apex Court would be maintainable only in case the order is passed by the NCDRC in exercise of its powers conferred under Section 21(a)(i) of the Act 1986 – No further appeal to this Court is provided against the order passed by the NCDRC in exercise of its powers conferred under Section 21(a)(ii) of the Act 1986 – There is no provision for filing any further appeal against the order passed on the appeal filed against the order of the SCDR – In such circumstances, the petitioner has come before this Court under Article 136 of the Constitution – Held that petitioner is to be asked to first go before the jurisdictional High Court either by way of a writ application under Article 226 of the Constitution or by invoking the supervisory jurisdiction of the jurisdictional High Court under Article 227 of the Constitution – Of course, after the High Court adjudicates and passes a final order, it is always open for either of the parties to thereafter come before this Court by filing special leave petition, seeking leave to appeal under Article 136 of the Constitution – Petition disposed of with liberty to the petitioner to approach the jurisdictional High Court and challenge the order passed by the NCDRC, in accordance with law. (Para 18, 38 and 42) Universal Sompo General Insurance Co. Ltd. Vs. Suresh Chand Jain : 2023 STPL(Web) 88 SC

Consumer Protection Act, 1986, Section 2(g) and 14(1)(d) – Consumer – Theft of insured vehicle – Insurance claim – Repudiation – Whether the delay of 6 days in intimating the Insurance Company about the theft comes within the purview of breach of Condition No. 1 and also whether on facts there was breach of condition No. 5 of the insurance policy to justify the rejection of the claim in toto? – After the incident of theft on 26.06.2008, FIR was registered on 27.06.2008 – The intimation was also given to the Insurance Company admittedly on 02.07.2008 – The Police have also reported the vehicle as untraced as the records indicate –There is no breach of Condition No. 1 of the insurance policy – It is an admitted position in the Repudiation Letter and the Survey Report that the theft did happen – What is alleged is that the Claimant was negligent in leaving the vehicle unattended with the key in the ignition – As will be seen from the definition of theft in Section 378 IPC, theft occurs when any person intended to take dishonestly any moveable property out of the possession of any person without that person’s consent, moves that property in order to such taking – It is not the case of the Insurance Company that the Claimant consented or connived in the removal of the vehicle – Repudiation letter that the driver had, after alighting from the vehicle, gone to enquire about the location of Mittal’s Farm and that after he went some distance, he heard the sound of the starting of the vehicle and it being stolen away – The time gap between the driver alighting from the vehicle and noticing the theft, is very short as is clear from the facts of the case. -It cannot be said, in such circumstances, that leaving the key of the vehicle in the ignition was an open invitation to steal the vehicle – Held that the present case was an eminently fit case, where the claim at 75% ought to have been awarded on a non-standard basis – Even if there was some carelessness, on the peculiar facts of this case, it was not a fundamental breach of Condition No.5 warranting total repudiation – It was rightly so ordered by the District Forum and affirmed by the State Commission – Judgment of the National Commission liable to be set aside and that of the District Forum as affirmed by the State Commission restored. (Para 10, 15 and 16) Ashok Kumar Vs. New India Assurance Co. Ltd. : 2023 STPL(Web) 122 SC

Contempt

Contempt of Courts Act, 1971, Section 2(a), 2(b), 12 – National Medical Commission Act, 2019 – Medical Council Act, 1956 –Contempt of Court – Suspension of license to practice medicine – Whether the suspension of the Petitioner’s license to practice medicine is alien to the nature and types of punishment and penalties specified under the Contempt of Courts Act, 1971?”- Grant, regulation and suspension of the licence to practice medicine is governed by the National Medical Commission Act, 2019 – It facilitates the maintenance of a medical register for India and enforces high ethical standards in regards of all aspects of medical services – A statutory body namely the National Medical Commission looks after the abovementioned activities – A perusal of the provisions of this Act as well as the now repealed, Medical Council Act, 1956 shows that the power to punish a registered medical practitioner for “misconduct” rest exclusively with the body envisaged under this Act – The Act itself provides for an exhaustive, complete mechanism to revoke the licence of a registered practitioner for professional misconduct – The same may be done after holding an inquiry and complying with the principles of audi alterum partem – A reading of subsection (1) of Section 12 of the Act shows that the punishment prescribed therein is simple imprisonment, not exceeding six months or a fine not exceeding Rs.2,000/ – Subsection (2) reads “notwithstanding anything contained in any other law for the time being in force” this implies that save and except the punishment provided in sub-Section (1) no other punishment can be prescribed to a person guilty of committing contempt of Court – Held that the punishment handed down to the contemnor is entirely foreign to the Act and, therefore, unsustainable – The Court, in awarding such punishment showed complete disregard for the statutory text of the Contempt of Courts Act 1971, which is abundantly clear in respect of the punishment that can be imposed thereunder – A medical practitioner guilty of contempt of Court may also be so for professional misconduct but the same would depend on the gravity/nature of the contemptuous conduct of the person in question – They are, however, offences separate and distinct from each other -The former is regulated by the Contempt of Court Act, 1971 and the latter is under the jurisdiction of the National Medical Commission Act, 2019 – Division Bench in the impugned judgment did not consider or discuss this issue nor was any final decision taken by the Single Judge in the subject contempt proceedings – Judgment of the Court’s below, i.e., the Division Bench and the orders of the Single Judge, High Court liable to be set aside – The licence of the appellant, to practice medicine is revived. (Para 7, 8, 19 to 22 and 25) Gostho Behari Das Vs. Dipak Kumarsanyal & Ors.: 2023 STPL(Web) 112 SC

Delay in release – Cost imposed – No application for extension of time for release – Absolutely no explanation for such a long delay – Rs 10000/- cost imposed on State. (Para 10) Mahendra & Ors. Vs. Rajesh Kumar Singh & Anr. : 2023 STPL(Web) 128 SC

Criminal

Criminal Procedure Code, 1973, Section 378(3) – Penal Code, 1860 , Section 302/ 34 – Murder – Acquittal Upheld – Appeal against acquittal – Rejection of application for leave to appeal – Challenge as to – Ocular evidence – Circumstantial evidence – Prosecution case rested on ocular account as well as on certain circumstances – The ocular account is provided by PW-3, PW-6 and PW-15 – Neither PW3 nor PW6 could identify any of the three accused – They did not depose that the three policemen involved in the crime were those who were facing trial – Held that there is no infirmity, much less perversity, in the view taken by the trial court that the testimony of PW-3 and PW-6 is not of much help to the prosecution qua the three accused facing trial – With regard to the testimony of PW-15, detailed reasons have been recorded by the trial court to hold him unreliable and unworthy of credit – Moreover, PW15’s presence is not confirmed by PW3 and PW6 – Otherwise also, PW15’s conduct of remaining silent for over a week creates a lingering doubt as to whether he is a witness set up on advise, particularly, when it is noticed that his first statement was not to the investigating agency but made on an affidavit prepared by a lawyer, who simultaneously prepared three affidavits identically worded – What transpires that the witnesses are consistent that there was a police action on that fateful night – Assuming that it is true that in the night there was an exchange of fire between men in uniform and members of the public, but there is no reliable evidence that the exchange of fire was with a view to kill – Moreover, the deceased did not die of a rifle bullet injury – Rather, he died from a .12 bore gun-shot which could not be ascribed to rifles issued to the accused persons – Therefore, even if empties of rifle cartridges relatable to service rifles issued to the accused were found at the spot, culpability of the accused persons in causing death of the deceased is not inferable – Further, there is no recovery of a .12 bore gun from any of the accused persons facing trial – Circumstances found proved do not constitute a chain so far complete as to indicate that in all human probability it were the accused persons and no one else who committed the crime – In such a situation, there was no option for the trial court but to extend the benefit of doubt to the accused – Do not find it to be a fit case to interfere with the order passed by the High Court. (Para 28 to 34) Central Bureau Of Investigation Vs. Shyam Bihari & Others : 2023 STPL(WEB) 68 SC

Penal Code, 1860, Section 323/ 34 – Hurt – Case not made out – Appeal against conviction – Appreciation of evidence – Prosecution has failed to drive home the guilt of the accused beyond reasonable doubt as the courts below itself had found that evidence tendered by the prosecution did not clearly establish two facts that appellants having assaulted the deceased and that the alleged injuries sustained by PW-2 to 5 had remained as a bald statement without proof – Held that in the absence of any incriminating material or other corroborative evidence pointing the participation of appellants-accused in the incident, the conviction of appellants under Section 323 read with Section 34 of IPC cannot be sustained -Judgment and order of sentence passed by the courts below against appellants liable to be set aside the appellants acquitted. (Para 11 to 13) Boini Mahipal And Anr. Vs. State of Telangana : 2023 STPL(Web) 71 SC

Criminal Procedure Code, 1973, Section 439 – Bail – Granted – Offence under Sections 468,469, 471, 194, 211, 218 and 120B IPC – Criminal Miscellaneous Application filed by appellant in the High Court – Vide its order dated 03rd August 2022 High Court issued rule and made it returnable on 19th September 2022 but her prayer for interim relief in bail application was not considered – Appellant approached Apex Court, by way of Criminal Appeal – Apex Court, vide its order dated 2nd September 2022,after considering various factors directed the appellant to be released on interim bail, subject to certain conditions – High Court directed to consider the bail application independently and uninfluenced by any of the observations made by this Court in the aforesaid order – High Court dismissed bail application – Held a detailed elaboration of evidence at the stage of bail has to be avoided – This is neither in the interest of the prosecution nor the accused – The factors which are required to be taken into consideration at the stage of grant of bail are – (i) prima facie case, (ii) the possibility of the accused tampering with the evidence or influencing the witnesses, and (iii) the possibility of the accused fleeing away from the hands of justice – Gravity and the seriousness of the offence is yet another factor that has to be taken into consideration – If the observations, as recorded by the learned Judge, are to be accepted then no application for bail at a pre-trial stage could be entertained unless the accused files an application for quashing the proceedings under Section 482 Cr.P.C., or Articles226 or 32 of the Constitution of India – Such findings are totally perverse – The consideration which weighed with the Apex Court while passing the aforesaid order dated 2nd September 2022 that the appellant is a lady has not changed – The fact that the offence alleged against her relates to the year 2002 and that the FIR pertains to documents which are sought to be presented or relied upon till the year 2012 has also not changed – The fact that the appellant was available for custodial interrogation for a period of seven days and there after she was in continuous judicial custody has also not changed – Another factor that needs to be taken into consideration is that after she was released on interim bail by this Court, she has admittedly not been called for investigation even on a single occasion – Taking into consideration that most of the evidence in the present case are documentary evidence, which are already in possession of the Investigating Agency and, further, that the charge-sheet has been filed, find that she is entitled for bail – Apprehension of the prosecution that she may influence the witnesses can be taken care of by directing her not to make any attempt to influence the witnesses – Appellant is directed to be continued on bail, which was granted to her in terms of the order dated 02nd September 2022 – The appellant has already surrendered her passport, which shall continue to be in the custody of the Sessions Court. (Para 22 to 41) Teesta Atul Setalvad Vs. State Of Gujarat : 2023 STPL(Web) 77 SC

Criminal Procedure Code, 1973, Section 439 – Bail – Challenge as to – Case of honour killing – Offences punishable under Section 302 read with Section 34 IPC and Section 3read with Sections 25 and 27 of the Arms Act, 1959–Held that primary considerations which must be placed at balance while deciding the grant of bail are: (i) The seriousness of the offence; (ii) The likelihood of the accused fleeing from justice; (iii) The impact of release of the accused on the prosecution witnesses; (iv) Likelihood of the accused tampering with evidence – Allegation against the respondents-accused is not only that they were involved in a conspiracy to kill the deceased, but also that they actively participated in his murder – The alleged incident is stated to be an instance of honour killing – A perusal of the charge sheet dated 19 August, 2022 would reveal that specific roles have been ascribed to each of the respondents-accused in the alleged incident – It cannot be said that the accusations against the respondents-accused are prima-facie wholly false, frivolous or vexatious in nature, so as to justify grant of bail – One of the prosecution witnesses, namely ‘N’, turned hostile – Therefore, in the absence of any evidence as to the circumstances under which she turned hostile, cannot rule out the possibility of the respondents-accused influencing other witnesses, tampering with the evidence, if they continue to remain on bail – The present case is not one where the accused have been detained in custody for an inordinate amount of time as under-trials – High Court has been swayed by the fact that one of the prosecution witnesses, namely, ‘N’ has turned hostile which is not an aspect that must be taken into account while considering an application for bail – Held that this case is a fit case for the grant of bail to the respondents-accused, given the seriousness of the allegations against them – High Court was not right in allowing the applications for bail filed by the respondents-accused – Impugned judgments dated 14 February, 2022 and 02February, 2023 passed by the High Court liable to be set aside – The respondents-accused are on bail – Their bail bonds stand cancelled and they are directed to surrender before the concerned jail authorities within a period of two weeks. (Para 18, 24, 26 and 28) Rohit Bishnoi Vs. State Of Rajasthan : 2023 STPL(Web) 82 SC

Passport Act, 1967, Section 10 – Criminal Procedure Code, 1973, Section 91(1), 102 – Penal Code, 1860, Sections 498A,403 and 406 – Dowry Prohibition Act, 1961, Section 3 and 4 – Passport – Release of – Appellant is accused no.1 in a prosecution for offences punishable under Sections 498A,403 and 406 IPC and Sections 3and 4 of the Act, 1961 – During the course of the investigation into the said offences, the Police issued a notice under Section 91 Cr.P.C. calling upon the appellant to produce his passport – Accordingly, the appellant submitted his passport to the concerned police station, which in turn, handed over the original passport to the 3rd respondent – Regional Passport Office – There was neither a seizure nor impounding of the passport – It was unauthorised retained by the 3rdrespondent – High Court directed the return of the passport subject to a deposit of a sum of Rs. 10 lakhs by way of Fixed Deposit Receipt in the name of the 4th respondent – As the High Court permitted the appellant to travel abroad, this condition was imposed to ensure that the appellant comesback as per his undertaking to attend the trial – Held that the direction to the appellant to return the passports of the appellant’s son and wife was not supported by law – High Court ought to have directed the 3rd respondent to return the passport – The direction to return the passports of his wife and son as a condition for the release of the appellant’s passport was completely illegal – As regards the passport of the son, it is taken care of as the appellant has followed the prescribed procedure in USA regarding lost passports – The condition of returning the passport of the 4th respondent could not have been imposed at all as the act of the Passport Officer of retaining the appellant’s passport was completely illegal -Respondent No. 4 can make an application in a prescribed form to the competent regional officer for the reissue of the passport – If the validity of the passport has expired and the period provided for renewal thereof has expired, she can apply for a fresh passport – If the 4threspondent wants some documents from the appellant only for the purposes of filing an application for the reissue of the passport or for grant of a fresh passport, the appellant shall cooperate by doing the needful – The condition imposed on the appellant by the impugned order of returning the passports of the 4threspondent and of the son liable to be set aside – The 4threspondent shall not be called upon to produce the proof of loss of passport – Filing a report to the Police about the loss of the passport shall be sufficient. The application shall be processed as expeditiously as possible – The appellant shall render all possible cooperation to the 4th respondent for getting the passport by providing documents, if any, required as per the Passports Rules, 1980. (Para 10 to 12) Chennupati Kranthi Kumar Vs. State Of Andhra Pradesh : 2023 STPL(Web) 87 SC

Penal Code, 1860, Section 302 – Army Act, 1950, Section 69 – Court Martial – Armed Forces Tribunal Act, 2007, Section 230 – Constitution of India, Article 226 read with Article 227 – Criminal Procedure Code, 1973, Section 482 – Murder – Nature of offence – Appellant, the deceased and PW13 had consumed liquor at the time of dinner – There was a heated exchange of words between the appellant and the deceased on the issue of seniority – Appellant did not have a weapon at that time and he used the weapon of the deceased – Out of 20 rounds in the magazine of the rifle, he fired only one bullet – Moreover, after the incident, the appellant did not run away and he along with PW 13 lifted the deceased and laid him by the side of the road – He frankly disclosed his version of the incident to PWs 13 and 14 – The appellant along with two other army men, lifted the deceased for putting him in the ambulance and he accompanied the deceased to the hospital –Thus there was no premeditation on the part of the appellant – There was a sudden fight over seniority when the appellant and the deceased had consumed liquor – There was no premeditation – The appellant, in the facts of the case, cannot be said to have acted in such a cruel manner which will deprive him of the benefit of exception 4 to Section 300 of IPC- Appellant held to be guilty of culpable homicide not amounting to murder – The appellant snatched the rifle from the hands of the deceased and fired one bullet at the deceased – This act was done with the intention of causing such bodily injury to the deceased as was likely to cause death. Therefore, the first part of Section 304 of IPC will apply in this case – Under the first part of Section 304 of IPC, an accused can be punished with imprisonment for life or with imprisonment for a term which may extend to 10 years – PW5 Naik in the cross-examination stated that he knew the appellant since June 2003 and was good in terms of discipline – He stated that the appellant did not misbehave with the deceased earlier – PW10 admitted that the accused had a ‘nice reputation’ – The conduct of the appellant will be a mitigating factor for determining the sentence – Appellant has undergone incarceration for a period of 9 years and approximately 3 months – Taking an overall view of the evidence on record, the sentence already undergone by the appellant will be an appropriate sentence in the facts of the case – Conviction of the appellant for the offence punishable under Section 302 of IPC altered to the one under Part 1 of Section 304 of IPC – The appellant sentenced to undergo imprisonment for the term which he has already undergone. (Para 10 to 13) No.15138812y L/Nk Gursewak Singh Vs. Union Of India : 2023 STPL(Web) 89 SC

Penal Code, 1860, exception 4 to Section 300 –Term ‘cruel manner’ – The term cruel manner is a relative term – Exception 4 applies when a man kills another – By ordinary standards, this itself is a cruel act – The appellant fired only one bullet which proved to be fatal – He did not fire more bullets though available – He did not run away and he helped others to take the deceased to a hospital – If we assign a meaning to the word ‘cruel’ used in exception 4 which is used in common parlance, in no case exception 4 can be applied – Held that exception 4 to Section 300 was applicable in this case – Therefore, the appellant is guilty of culpable homicide not amounting to murder. (Para 13) No.15138812y L/Nk Gursewak Singh Vs. Union Of India : 2023 STPL(Web) 89 SC

Criminal Procedure Code, 1973, Section 438 – Central Excise Act, 1944, Section 145 – Finance Act, 1994, Section 83 – Central Goods and Service Tax Act, 2017, Section 69, 70 –Anticipatory bail – Goods and Services Tax – Held that if any person is summoned under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement, the provisions of Section 438 of Code, 1973 cannot be invoked – No First Information Report gets registered before the power of arrest under Section 69(1) of the CGST Act, 2017 is invoked and in such circumstances, the person summoned cannot invoke Section 438 of the Code for anticipatory bail – The only way a person summoned can seek protection against the pre-trial arrest is to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India – What the respondents sought by filing two criminal applications under Article 226 of the Constitution before the High Court was the direction to the appellant herein not to arrest them in exercise of the power conferred by Section 69(1) of the GST Act, 2017 – This, in essence, is key to prayer for anticipatory bail – However, at the stage of summons, the person summoned cannot invoke Section 438 of the Code of Criminal Procedure. (Para 16) State Of Gujarat Etc. Vs. Choodamani Parmeshwaran Iyer & Anr.: 2023 STPL(Web) 102 SC

Constitution of India, Article 226 – Criminal Procedure Code, 1973, Section 438 – Central Goods and Service Tax Act, 2017, Section 69, 70 – Writ of mandamus – Anticipatory bail – Against summons under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement – There is a fundamental distinction between a petition for anticipatory bail and the writ of mandamus directing an officer not to effect arrest – A writ of mandamus would lie only to compel the performance of the statutory or other duties – No writ of mandamus would lie to prevent an officer from performing his statutory function – When a writ application is filed before the High Court under Article 226 of the Constitution, the writ court owes a duty to examine the fact of the case and ascertain whether the case of the writ applicant falls under the category of exceptional cases as indicated in Kartar Singh case – The writ court should also ensure whether by issuing the writ of mandamus, it would be preventing the competent authority or proper officer from performing any of their statutory functions – Held that still inclined to give one more opportunity to both the respondents to appear before the authorities for the purpose of recording of their statements – If the respondents fail to appear, then it shall be open for the authority concerned to proceed further in accordance with law. (Para 17 and 19) State Of Gujarat Etc. Vs. Choodamani Parmeshwaran Iyer & Anr. : 2023 STPL(Web) 102 SC

Bail – Self Contradictory order of High Court – On the one hand, the application for anticipatory bail is rejected by High Court and, on the other hand, the interim protection is granted for a period of two months – Held: The second part of the order directing that no coercive steps shall be taken against the respondents for a period of two months is quashed and set aside. (Para 10, 11) State Of Uttar Pradesh Vs. Mohd. Afzal & Ors. : 2023 STPL(Web) 106 SC

Bail – Crypto currency fraud – The investigation is complete and the charge-sheet has been filed and the trial is yet to commence and its conclusion is likely to take some time. Bail granted with Strict Conditions. (Para 6) Ganesh Shivkumar Sagar Vs. State Of Gujarat : 2023 STPL(Web) 111 SC

Criminal Procedure Coe, 1973, Section 319 – Criminal Procedure – Summoning as additional evidence –Offence under Sections 458, 460, 323, 302, 148, 149 and 285 of IPC, 1860 read with Section 25 of Arms Act, 1959 – Statement given by PW-9, complainant, in his examination in chief forms the basis for summoning the three persons – Held that the Court had no alternative here but to summon the accused persons, considering that now it had an evidence before it in the form of the statement of PW-9 -Trial court was absolutely correct to have summoned the accused based on the evidence of PW-9 – High Court committed a grave error in allowing the revision of the accused -The merits of the evidence has to be appreciated only during the trial, by cross examination of the witnesses and scrutiny of the Court – This is not to be done at the stage of Section 319, though this is precisely what the High Court has done in the present case – One of the charges being Section 149, which is of being a member of an unlawful assembly, for attracting the offence under Section 149 IPC, one simply has to be a part of an unlawful assembly – Any specific individual role or act is not material – Once there is satisfaction of the Court that there is evidence before it that an accused has committed an offence, the court can proceed against such a person – At the stage of summoning an accused, there has to be a prima facie satisfaction of the Court – The evidence which was there before the Court was of an eye witness who has clearly stated before the Court that a crime has been committed, inter alia, by the revisionist – The Court need not cross-examine this witness – It can stop the trial at that stage itself if such application had been moved under Section 319 – The detail examination of the witness and other witnesses is a subject matter of the trial which has to begin afresh prosecution had fully made out its case for summoning the three as accused under Section 319, Cr.PC, so that they may also face trial – High Court order liable to be set aside. It is further directed that the trial shall proceed now in accordance with law, as expeditiously as possible. (Para 4 to 6) Sandeep Kumar Vs. The State Of Haryana & Anr. : 2023 STPL(Web) 113 SC

Unlawful Activities (Prevention) Act, 1967, Sections 2(k), 13, 16, 17, 18, 18A, 18B, 20, 38, 39, 40, 43D – Penal Code, 1860 Sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120B read with Section 34 – National Investigation Agency Act, 2008, Section 6(5) read with Section 8 –Bail – Restrictive provision of Section 43D of Act, 1967 – ) Unlawful Activities – Evidence analysis – Some letters alleged to have been recovered from the computers or other devices of the co-accused persons in which activities of the two appellants have been referred to – Under ordinary circumstances in a petition for bail exercise of analysis of evidence would not have been necessary – But in view of the restrictive provisions of Section 43D of the 1967 Act, some element of evidence-analysis becomes inevitable – Apart from these letters and statements, various literatures, books etc. have been referred to by the prosecution which they claim to have recovered from the residences of appellants – These mainly involve writings on extreme left-wing ideology including its application to India – Similar materials are alleged to have been recovered from other accused persons as well – Recovery of different electronic communication devices like Mobile Phones, Tablets, Pen Drives and ancillary items is alleged to have been made – From these devices themselves, however, no evidence has been cited which would implicate appellants in terrorist acts and the other offences barring the letters on which emphasis has been laid by the agency – While dealing with prima facie worth of these statements and documents is that none of them had been seized or recovered from the appellants but these recoveries are alleged to have been made from the co-accused – It is not the NIA’s case that either of the two appellants is the author of the materials found from their residences, as alleged – None of these literatures has been specifically proscribed so as to constitute an offence, just by keeping them. (Para 15, 22 and 24) Vernon Vs. State of Maharashtra & Anr. : 2023 STPL(Web) 116 SC

Unlawful Activities (Prevention) Act, 1967, Sections 2(k), 13, 16, 17, 18, 18A, 18B, 20, 38, 39, 40, 43D – Penal Code, 1860 Sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120B read with Section 34 – National Investigation Agency Act, 2008, Section 6(5) read with Section 8 – Bail – Restrictive provision of Section 43D of Act, 1967 – Held that it is not possible to form an opinion that there are reasonable grounds for believing that the accusation against the appellant of committing or conspiring to commit terrorist act is prima facie true – The witness statements do not refer to any terrorist act alleged to have been committed by the appellants – The copies of the letters in which the appellants or any one of them have been referred, record only third-party response or reaction of the appellants’ activities contained in communications among different individuals – These have not been recovered from the appellants – Hence, these communications or content thereof have weak probative value or quality -Neither the provisions of Section 18 nor 18B can be invoked against the appellants, prima facie, at this stage – The association of the appellants with the activities of the designated terrorist organisation is sought to be established through third party communications – Moreover, actual involvement of the appellants in any terrorist act has not surfaced from any of these communications – Nor there is any credible case of conspiracy to commit offences enumerated under chapters IV and VI of the 1967 Act – Mere participation in seminars by itself cannot constitute an offence under the bail-restricting Sections of the 1967 Act, with which they have been charged – Appellants are almost five years in detention – A bailrestricting clause cannot denude the jurisdiction of a Constitutional Court in testing if continued detention in a given case would breach the concept of liberty enshrined in Article 21 of the Constitution of India, would apply in a case where such a bail-restricting clause is being invoked on the basis of materials with prima facie low-probative value or quality – Impugned judgments liable to be set aside and direct that the appellants be released on bail in respect of the cases(s) out of which the present appeals arise, on such terms and conditions the Special Court may consider fit and proper, if the appellants or any one of them are not wanted in respect of any other case. (Paras 29, 41, 42 and 45) Vernon Vs. State of Maharashtra & Anr. : 2023 STPL(Web) 116 SC

Bail – Sample of Narcotic not sent to Chemical Analyzer – Seizure of Commercial quantity under NDPS – Bail – Plea that this issue can be decided at the time of the trial. – Not Accepted – Be that it may ultimately the trial will be conducted only on the basis of the evidence collected during investigation. So, this contention cannot be accepted. Held: Held: Fact remains that these samples were not sent to the Chemical Analyzer. Bail granted. (Para 8 to 12) Santosh Pandurang Parte Vs. Amar Bahadur Maurya And Anr. : 2023 STPL(Web) 119 SC

Constitution of India, Article 136 – National Investigation Agency Act, 2008, Section 6 – Bengal Clashes – Investigation of Scheduled offences – Challenge to the directions of the High Court holding that this is a fit case where the entire investigation should be transferred to the National Investigation Agency with a direction to the Central Government to exercise their power under Section 6(5) of the Act 2008 – Following this, on 8 May 2023, the Central Government issued a notification in exercise of its power under Section 6(5) – The notification issued by the Central Government makes a reference to the order passed by the High Court but, having done so, it proceeds to expressly clarify that the power was also being exercised in terms of the provisions of Section 6(5) – Pursuant thereto, six FIRs were registered on 10 May 2023 – Cognizance has been taken by the Special Court on 11 May 2023 – NIA has exercised its jurisdiction specifically with reference to its powers under Section 6(5) – Held that at this stage, the Court is not called upon to either decide on the sufficiency of the allegations or their veracity – The remit of this Court would be to determine whether the exercise of jurisdiction by the Central Government under Section 6(5) is extraneous to the powers conferred upon it by Section 6(5) so as to warrant the interference of this Court – . The precise contours of the investigation which should be carried out by the NIA cannot be anticipated or restricted at this stage – Cognizance has also been taken by the NIA Court – There is no challenge to the validity of the notification which was issued under Section 6(5) – Held that not inclined to entertain the Special Leave Petitions for the reasons indicated above – Clarify that the observations which were made by the High Court in the impugned order would be confined to the question as to whether the exercise of jurisdiction by the NIA under the Act, 2008 is valid – For the above reasons, the judgment of the High Court affirmed- Special Leave Petitions are disposed of in the above terms. (Para 11 to 18) State of West Bengal Vs. Suvendu Adhikari : 2023 STPL(Web) 120 SC

Criminal Procedure Code, 1973, Section 438 – Anticipatory bail – Matrimonial dispute – First Information Report (FIR) against the appellant and his brother and others, complaining of commission of offences under Section 498A, 323/504/506 IPC and Section 3 & 4 of the Dowry Prohibition Act – There are no startling features or elements that stand out or any exceptional fact disentitling the appellant to the grant of anticipatory bail – What is important is not that the matrimonial relationship soured almost before the couple could even settle down but whether allegations levelled against the appellant are true or partly true at this stage, which at best would be matters of conjecture – High Court granted an order effectively directing the police not to arrest him during the pendency of his application under Section 438 of the CrPC – Investigation was completed, and chargesheet was filed after 08.08.2022, and in fact cognizance was taken on 01.10.2022 by the Sessions Judge – Appellant cooperated with the investigation both before 08.08.2022, when no protection was granted to him and after 08.08.2022, when he enjoyed protection till the filing of the chargesheet and the cognizance thereof on 01.10.2022 – Held that once the chargesheet was filed and there was no impediment, at least on the part of the accused, the court having regard to the nature of the offences, the allegations and the maximum sentence of the offences they were likely to carry, ought to have granted the bail as a matter of course – High Court fell into error in adopting such a casual approach – The impugned order of rejecting the bail and directing the appellant, to surrender and later seek bail, therefore, cannot stand, and is liable to be set aside – All the courts ceased of proceedings directed to strictly follow the law laid down in Arnesh Kumar (supra) and the directions contained thereunder, as well as other directions reiterated – The appellant directed to be enlarged on bail subject to such terms and conditions that the Trial Court may impose. (Para 12 and 13) Md. Asfak Alam Vs. State of Jharkhand & Anr. : 2023 STPL(Web) 123 SC

Criminal Procedure Code, 1973, Section 437, 438 – Bail -Anticipatory bail – Held that ordinarily bail ought to be granted and that in serious cases – which are specified in the provisions of the CrPC (Section 437) which involve allegations relating to offences carrying long sentences or other special offences, the court should be circumspect and careful in exercising discretion – The paramount considerations in cases where bail or anticipatory bail is claimed are the nature and gravity of the offence, the propensity or ability of the accused to influence evidence during investigation or interfere with the trial process by threatening or otherwise trying to influence the witnesses; the likelihood of the accused to flee from justice and other such considerations – During the trial, the court is always in control of the proceedings, and it is open for it to impose any condition which it deems necessary to ensure the accused’s presence and participation in the trial – The court must, in every case, be guided by these overarching principles. (Para 9) Md. Asfak Alam Vs. State of Jharkhand & Anr. : 2023 STPL(Web) 123 SC

Code of Criminal Procedure, 1973 – Section 202(1) – Criminal Procedure – Magistrate inquiry in Private Complaint – Complaint dismissed at initial stage after recording statement of Complainant only and without recording statements of witnesses cited in complaint – Magistrate order set aside by High Court – Appeal to Supreme Court – Held: A perusal of the complaint shows that eight witnesses were specifically named in the complaint. The learned Magistrate did not examine any of them. The learned Magistrate has not recorded reasons for not recording the statements of other witnesses specifically cited in the complaint. After taking recourse to sub-Section (1) of Section 202 of the Cr.P.C., before dismissing a complaint by taking recourse to Section 203 of the Cr.P.C., the learned Magistrate has to consider the statements of the complainant and his witnesses. No error when the High Court came to the conclusion that the complaint deserves to be remanded from the stage of holding an inquiry under sub-Section (1) of Section 202 of the Cr.P.C. (Para 4, 5) Dilip Kumar Vs. Brajraj Shrivastava & Anr. 2023 STPL(Web) 137 SC

Culpable Homicide

Penal Code, 1860, Section 304 Part I, 304 Part II – Culpable Homicide – Nature of offence – Single injury – On the fateful day of the incident, the father and son were working in their agricultural field early in the morning – They wanted to transport the crop, they had harvested and for that purpose they had called for a lorry- Dispute between the deceased and the appellant as deceased did not allow the driver of the lorry to use the disputed pathway -Verbal altercation between the appellant and the deceased- Appellant hit a blow on the head of the deceased with the weapon of offence (weed axe) resulting in his death in the hospital – Held that find it difficult to come to the conclusion that when the appellant struck the deceased with the weapon of offence, he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death – The weapon of offence in the present case is a common agriculture tool – If a man is hit with a weed axe on the head with sufficient force, it is bound to cause death – Injuries shown in the post mortem report are fracture of the parietal bone as well as the temporal bone – The deceased died on account of the cerebral compression i.e. internal head injuries – Appellant could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause the death – Held that the case on hand does not fall within clause thirdly of Section 300 of the IPC – Conviction of the appellant under Section 304 Part I of the IPC altered to one under Section 304 Part II of the IPC – For the altered conviction, the appellant is sentenced to undergo rigorous imprisonment for a period of five years. (Para 61 to 63) Anbazhagan Vs. State Represented By The Inspector Of Police : 2023 STPL(Web) 74 SC

Penal Code, 1860, Section 299, 300 – Nature of offence – Culpable homicide not amounting to murder – Murder – Interpretation and application of provisions of Section 299 and 300 IPC summed up as follows:

(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : ‘A’ is bound hand and foot. ‘B’ comes and placing his revolver against the head of ‘A’, shoots ‘A’ in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of ‘B’ in shooting ‘A’ was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, ‘B’ sneaks into the bed room of his enemy ‘A’ while the latter is asleep on his bed. Taking aim at the left chest of ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’ and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that ‘B’ intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of ‘B’ within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.

(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused’s case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.

(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’.

(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.

(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ‘likely to cause death’ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.

To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.

(6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.

(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.

(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.

(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.

(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.

(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.

(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC. (Para 60) Anbazhagan Vs. State Represented By The Inspector Of Police : 2023 STPL(Web) 74 SC

Dishonour of Cheque

Negotiable Instrument Act, 1882 – Section 138 – Sentence – Consecutive – Plea against consecutive sentence – Dishonour of cheque – Held:When the conviction arises out of the single transaction, concurrent sentence would be merited. But present are the cases where there were several transactions over a period of time pertaining to supply of raw material to the petitioner for which the cheques tendered towards payment, were dishonoured so benefit of concurrent sentence not available. (Para 2) K. Padamaja Rani Vs. State of Telangana : 2023 STPL(Web) 127 SC

Election

Civil Procedure Code, 1908, Order 7 Rule 11; Order 12 Rule 6 – Representation of People Act, 1951, Sections 8, 33A, 33-B, 81 and 84 read with Sections 100(1)(d)(i)(ii)(iii) & (iv) – Election petition – Application for rejection of petition – Ground that the election petition did not disclose any cause of action and was barred in law and was liable to be rejected – Election petition filed inter alia on the ground of non-disclosure of conviction under Payment of Wages Act, 1936 and Minimum Wages Act, 1948 – Apart from allegations pertaining to non-disclosure of criminal cases pending against the appellant, or cases where he was convicted, other averments and allegations have been made regarding on-compliance with stipulations regarding information dissemination and the manner of dissemination through publication in newspapers, the font size, the concerned newspapers’ reach amongst the populace, etc. – The alleged noncompliance with statutory and Election Commission mandated regulations, and their legal effect, cannot be examined in what are essentially summary proceedings under Order 7 Rule 11, CPC, or even under Order 12 Rule 6, CPC – Even if the allegations regarding non-disclosure of cases where the appellant has been arrayed as an accused, are ultimately true, the effect of such allegations (in the context of provisions of law and the non-disclosure of all other particulars mandated by the Election Symbols orders) has to be considered after a full trial – The admission of certain facts (and not all) by the election petitioner cannot be sufficient for the court to reject the petition, wholly – Even in respect of the undeniable nature of the judicial record, the effect of its content, is wholly inadequate to draw a decree in part – The elector or voter’s right to know about the full background of a candidate- evolved through court decisions- is an added dimension to the richtapestry of our constitutional jurisprudence – Held that if the appellant’s contentions were to be accepted, there would be a denial of a full-fledged trial, based on the acknowledgement that material facts were not suppressed – Whether the existence of a criminal case, where a charge has not been framed, in relation to an offence which does not possibly carry a prison sentence, or a sentence for a short spell in prison, and whether conviction in a case, where penalty was imposed, are material facts, are contested – This court would be pre-judging that issue because arguendo if the effect of withholding some such information is seen as insignificant, by itself, that would not negate the possibility of a conclusion based on the cumulative impact of withholding of facts and non-compliance with statutory stipulations (which is to be established in a trial) – Impugned judgment dismissing an application which sought rejection of the respondent’s election petition cannot be faulted – Appeal liable to be dismissed. (Para 26 to 29) Bhim Rao Baswanth Rao Patil Vs. K. Madan Mohan Rao : 2023 STPL(Web) 80 SC

Electricity

Insolvency resolution process – Distribution of assets – Company under liquidation – Secured creditor – ‘Waterfall mechanism’–Challenge to the order of the National Company Law Appellate Tribunal which rejected its appeal against an order of the National Company Law Tribunal which allowed an application directing the District Magistrate and Tehsildar, Muzaffarnagar to immediately release property (which was previously attached at the request of the appellant) in favour of the liquidator of the respondent Raman Ispat Pvt. Ltd.- “corporate debtor” for enabling its sale, and after realisation of its value, for distributing the proceeds in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016 -Corporate debtor entered into an agreement with appellant-PVVNL for supply of electricity on 11.02.2010 which provided that outstanding electricity dues would constitute a ‘charge’ on its assets – This was in accordance with Clause 4.3(f)(iv) of the 2005 Code–PVVNL undoubtedly has government participation – However, that does not render it a government or a part of the ‘State Government’ – Its functions can be replicated by other entities, both private and public – The supply of electricity, the generation, transmission, and distribution of electricity has been liberalized in terms of the 2003 Act barring certain segments – Private entities are entitled to hold licenses – In this context, it has to be emphasized that private participation as distribution licensees is fairly widespread – Held that in the present case, dues or amounts payable to PVVNL do not fall within the description of Section 53(1)(f) of the IBC – Held that appeal deserves to fail – At the same time, the liquidator directed to decide the claim exercised by PVVNL in the manner required by law – It shall complete the process within 10 weeks from the date of pronouncement of this decision, after providing such opportunity to the appellant, as is necessary under law. (Para 42, 47 and 57) Paschimanchal Vidyut Vitran Nigam Ltd. Raman Ispat Private Limited & Ors. : 2023 STPL(WEB) 66 SC

Evidence

Penal Code, 1860, Section 302 – Evidence Act, 1872, Section 6 – Evidence – Doctrine of res gestae – Version of PW12 and PW25 who were claiming to be the eyewitnesses completely supports the defence of the appellant of accidental firing – They have not deposed that the appellant intentionally fired bullets at the deceased – Theory of the prosecution that the appellant fired intentionally has not been established – The appellant was instructed by PW12 to go to the deceased and to prevent him from continuing the use of the telephone – Therefore, he went near the deceased – It is the reaction or the action of the deceased which resulted in the SAF getting entangled with the chain attached to the appellant’s belt; which led to the accidental fire from SAF – Therefore, the accused spontaneously reacted by telling PW12 what she has got done from him – While implementing the direction issued by PW12, the accidental fire took place and that is how the appellant became responsible for the death – It is in this context that the reaction of the appellant has to be understood – By those words, he has blamed the PW12 – The statement attributed to PW12 means that she would support the appellant before the Court by telling the truth – If the theory of accidental firing is accepted, the interpretation of the aforesaid statements as made by us becomes a possible interpretation which is consistent with normal human conduct -The alleged statements are certainly connected with the fact in issue, namely, the alleged act of the appellant of killing the deceased -Therefore, assuming that the statements attributed to the appellant and PW12 were in fact made, the conduct of the appellant of making the said statement becomes relevant in view of Section 6 – In any case, in the facts of the case, the version of the two witnesses who have deposed about the appellant making such statement does not inspire confidence. (Para 17 and 18) Arvind Kumar Vs. State Of Nct, Delhi : 2023 STPL(WEB) 69 SC

Evidence Act, 1872, Section 5 and 6 – Evidence – Doctrine of res gestae – Section 5 of the Evidence Act provides that evidence may be given in a proceeding of the existence or nonexistence of every fact in issue and of such other facts which are declared to be relevant under the provisions of Chapter II of the Act, 1872 – Section 6 is applicable to facts which are not in issue – Such facts become relevant only when the same satisfy the tests laid down in Section 6 – Hence, the statement of an accused to which Section 6 is applicable cannot be treated as a confession of guilt – The statement becomes relevant which can be read in evidence as it shows the conduct of the appellant immediately after the incident. (Para 18) Arvind Kumar Vs. State Of Nct, Delhi : 2023 STPL(WEB) 69 SC

Family

Labour Law

Industrial Employment (Standing Orders) Act, 1946, Section 2(b), 15 – Bombay Industrial Employment (Standing Orders) Rules, 1959, Clause 4C, 32– Industrial Disputes Act, 1947, Section 2(oo)(bb), Section 25-H – Appropriate authority – Empowered to issue standing order under Act, 1946 – Respondent is not, within the meaning of Section 2(b), under the control of the Central Government – Respondent Company is concerned, the appropriate Government is clearly not the Central, but the State Government – The present case falls under the latter part of the section 2(b) -Held that the appropriate Government means the State Government – The Bombay Model Standing Order would be applicable to the parties. (Para 3 to 5) Bharatiya Kamgar Karmachari Mahasangh Vs. M/S. Jet Airways Ltd.: 2023 STPL(Web) 86 SC

Industrial Employment (Standing Orders) Act, 1946, Section 2(b), 15 – Bombay Industrial Employment (Standing Orders) Rules, 1959, Clause 4C, 32– Industrial Disputes Act, 1947, Section 2(oo)(bb), Section 25-H – Settlement – Contrary to Standing Order – Whether private agreement/settlement between the parties would override the Standing Order? – CGIT noted that the letters issued by the airlines (Respondent herein) to the workmen aimed to appoint them for a fixed term – Even though their appointment orders, issued from time to time, extended their appointment period, however, on expiry of such period, their employment was supposed to end – High Court, while upholding the order of the CGIT, held that the mere completion of 240 days would not entitle the members to claim permanency under the Model Standing Order given the settlement and, more specifically, Clause 18 thereof – It further observed that the Model Standing Order is not a statutory provision but, at best, a statutorily imposed condition of service that a settlement or award can alter – Held thatfindings of the Tribunal and the High Court unsustainable – The certified standing orders have a statutory force – The Standing Order implies a contract between the employer and the workman – Therefore, the employer and workman cannot enter into a contract overriding the statutory contract embodied in the certified Standing Orders – Reading of aforesaid clauses 4C and 32 reveals that a workman who has worked for 240 days in an establishment would be entitled to be made permanent, and no contract/settlement which abridges such a right can be agreed upon, let alone be binding -The Act being the beneficial legislation provides that any agreement/contract/settlement wherein the rights of the employees are waived off would not override the Standing Orders – Held that the Appellant-Union entitled to all benefits per the Bombay Model Standing Order – The award passed by CGIT and the judgment passed by the High Court affirming the same liable to be quashed and set aside. (Para 7, 12 to 14, 16 and 18) Bharatiya Kamgar Karmachari Mahasangh Vs. M/S. Jet Airways Ltd.: 2023 STPL(Web) 86 SC

Employees State Insurance Act, 1948 – Section 75 – Employees State Insurance – Applicability of Law – More than 10 workers engaged and Power used – Held: Appellant is in the business of selling electrical goods in a shop. Admittedly, the shop premise is used not only for selling goods, but also to service electrical goods.

That being the position, it is clear that the appellant firm falls under the definition of a “Factory” and is using a “manufacturing process”, as contemplated under both the Statues. ESI Act applicable. The appellant-firm is an establishment that has been using electrical energy for the sale and repair of electrical goods at its premises by using “power” as has been defined under Section 2(15)(C) of the ESI Act, which again takes us back to the Factories Act, 1948, where the definition of “power” has been spelt out in Section 2(g) and the meaning ascribed to the said word is ‘electrical energy, or any other form of energy which is mechanically transmitted and is not generated by human or animal agency’. ESI Act held to be applicable on appellant firm. (Para 9, 10) M/S J.P. Lights India Vs. Regional Director E.S.I. Corporation, Bangalore : 2023 STPL(Web) 169 SC

Limitation

Condonation of Delay – Allowed – Justice oriented approach – Dismissal of appeal on round of delay of 52 days – Appeal to Supreme Court – Held: If only the court concerned had been sensitive to the justice oriented approach rather than the iron- cast technical approach, the litigation between the parties probably would have come to an end much earlier after decision on the merits of their rival contention. If that be the position, the very manner in which the lower Appellate Court has dismissed the appeal on the ground of delay when the delay was not inordinate is not justified and the High Court was also not justified in dismissing the appeal only on the ground that there was no question of law. Delay condoned – Appeal restored. (Para 5, 6) Raheem Shah & Anr. Vs. Govind Singh & Ors.: 2023 STPL(Web) 110 SC

Murder

Penal Code, 1860, Section 302, 304A – Murder – Nature of offence – Prosecution has failed to prove that the appellant had either any intention of causing the death of the deceased or the intention of causing such bodily injury to the deceased which was likely to cause his death – Assuming that when the appellant approached the deceased to stop him from using the telephone, he was aware that the change lever was not in a safety position, it is not possible to attribute knowledge to him that by his failure to keep SAF in the safety position, he was likely to cause the death of the deceased – The knowledge of the possibility of the deceased who was himself a policeman pulling SAF carbine cannot be attributed to the appellant – In fact, the appellant could not have imagined that the deceased would do anything like this – Thus, by no stretch of the imagination, it is a case of culpable homicide as defined under Section 299 of IPC as the existence of none of the three ingredients incorporated therein was proved by the prosecution – However, there is a failure on the part of the appellant who was holding a sophisticated automatic weapon to ensure that the change lever was always kept in a safety position – This was the minimum care that he was expected to take while he approached the deceased – Thus, there is gross negligence on the part of the appellant which led to a loss of human life – Due to his rash and negligent act, the deceased lost his life – Held that the appellant is guilty of a lesser offence punishable under Section 304A of IPC for which the maximum sentence is imprisonment for two years – The appellant has undergone a sentence of more than eight years – Conviction of the appellant under Section 302 of the IPC set aside and he is held guilty of committing the offence punishable under Section 304A of IPC – The appellant has undergone the maximum sentence prescribed for the said offence – Hence, his detention in prison is no longer required – Hence, his bail bonds are cancelled.(Para 19 to 21) Arvind Kumar Vs. State Of Nct, Delhi : 2023 STPL(WEB) 69 SC

Penal Code, 1860, Section 302 – Murder – Circumstantial evidence – Appreciation of evidence – Delayed FIR – Motive – Medical evidence -Testimony of PW 1-informant was not reliable and could not have formed the basis of conviction – Apparently, he was influenced by Sarpanch whose active participation in the proceedings subsequent to the incident cannot be ruled out – The medical evidence did not support the prosecution case as the weapon of assault could not have caused injury on the deceased as noticed in the post-mortem report – There was no motive as to why the appellant would commit the murder of an acquaintance and a friend for no reason – The defence version that the deceased was under the influence of alcohol and could have tripped and fallen on a sharp object resulting into the ante-mortem injury reported in the post-mortem was quite possible – The same is clearly borne out from the record – The explanation for delayed lodging of the FIR is not satisfactory – Held that the prosecution had failed to establish the charge hence the appellant would be entitled to acquittal – The conviction and sentence of the appellant liable to be set aside. (Para 31 to 37) Shatrughan Vs. State Of Chhattisgarh : 2023 STPL(Web) 72 SC

POCSO

Protection of Children from Sexual Offences Act, 2012, Section 6 – Prohibition of Child Marriage Act, 2006, Section 10, 34 – Juvenile Justice (Care and Protection of Children) Act, 2015, Section 94 – Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 – POCSO – Age Determination of victim – School transfer certificate – Ossification test – Only a school transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered which showed the date of birth of the victim as 11.07.1997 – Transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e., CW-1 – Held that the burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon – DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing – Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence – Only piece of evidence, accorded with Section 94 of the JJ Act was the medical ossification test, based on several X-Rays of the victim – On the basis of which PW-9 made her statement and she explained the details regarding examination of the victim’s bones, stage of their development and opined that she was between 18-20 years – In cross-examination she said that the age might be 19 years – Held that given all these circumstances, the result of the ossification or bone test was the most authentic evidence, corroborated by the examining doctor, PW-9. (Para 14 and 19) P. Yuvaprakash Vs. State Rep. By Inspector Of Police : 2023 STPL(Web) 70 SC

Protection of Children from Sexual Offences Act, 2012, Section 2(a), 3 , 5, 6, 7 – Penal Code, 1860, Section 350, 351, 366 – Prohibition of Child Marriage Act, 2006, Section 10 – Criminal Procedure Code, 1973, Section 164 – Penetrative sexual assault –Statement of victim – In her statement under Section 164 of the Cr. PC, the victim M had deposed that she was in love with the appellant, had consumed poison, and had even been hospitalized because she was adamant to live with the appellant which she subsequently resiled – Yet, the medical evidence) indicated that the victim had a ruptured hymen; there was no external injury at her private parts, and that according to her “48 hours before medical examination there was no evidence to show that she had sexual assault – Held that the prosecution was not able to establish that there was any penetrative sexual assault as a result of coercion or compulsion on the part of the appellant – All the facts proved in this case clearly indicate M’s willingness to accompany the appellant and even celebrate their marriage – However, she did not support the statement under Section 164 Cr. PC – Prosecution did not produce the Judicial Magistrate who recorded the statement; however, that officer was available and was stationed at Erode – She deposed during the trial, as DW-1, and importantly affirmed the veracity of the victim’s statement (Ex. P-4) – Prosecution did not even cross examine this witness – Held that M’s statement under Section 164 of the Cr. PC contained a truthful narration of the events -There was no penetrative sexual assault on her -Provisions of the POCSO Act will not be applicable in this case – The impugned judgment set aside – The charges against appellant, under Section 6 of the POCSO Act as well as Section 10 of the Act, 2006 cannot be sustained; the findings of the courts below, i.e., conviction and sentences imposed are, therefore, set aside – Appellant held not guilty of the offences he was charged with and liable to be acquitted. (Para 21 to 23) P. Yuvaprakash Vs. State Rep. By Inspector Of Police : 2023 STPL(Web) 70 SC

Practice and Procedure

Seeking constitution of a bench – Dismissed with Cost – SLP against dismissal of plea by High Court -The only infirmity that we find with the impugned order of the High Court is that heavy cost was not imposed on the litigant who filed a mischievous I.A. No.1873/2023 seeking constitution of a bench as he wanted, to the writ petition. Consequently, this mis-conceived Special Leave Petition is dismissed imposing costs of Rs.50,000/- on the petitioner. (Para 1, 2) Lokendra Gurjar Vs. State Of Madhya Pradesh & Ors. : 2023 STPL(Web) 103 SC

Sentence

Service

Army Act, 1950, Section 39(b), 106, 120, 164 – Army Rules, Rule 22 – Defence Service Regulations, 1987, Regulation 448 – Service Law – Over-staying of leave – Summary Court Martial – Dismissal –Quantum of punishment – Judicial review – Despite rejection his request for extension of leave appellant overstayed leave for 108 days – Appellant did not place any document on record by way of the treatment summary or medical certificate of his wife to demonstrate that she was seriously ill and required his presence for constant treatment – Instead, a bald statement was made by him during the Summary of Evidence to the effect that he had remained absent without leave on account of his wife’s ill health – Moreover, the appellant failed to cross-examine any of the prosecution witnesses produced by the respondents during the Summary of Evidence – Appellant had been taking too many liberties during his service and despite several punishments awarded to him earlier, ranging from imposition of fine to rigorous imprisonment, he did not mend his ways. This was his sixth infraction for the very same offence – Held that he did not deserve any leniency by infliction of a punishment lesser than that which has been awarded to him – Appeal liable to be dismissed as meritless, while upholding the impugned judgment. (Para 8, 17 and 18) Ex Sepoy Madan Prasad Vs. Union Of India And Others : 2023 STPL(Web) 114 SC

Army Act, 1950, Section 39 – Service Law – Quantum of punishment – Absence without leave -Judicial review – From a bare reading of the aforesaid provision of section 39 which deals with offences relating to absence without leave, in case of an offence of overstaying leave without sufficient cause, on a conviction by a Court Martial, punishment by way of imprisonment for a term that may extend to three years or such less punishment as contemplated in the Act can be imposed on the delinquent person – Section 71 that falls under Chapter VII of the Act deals with punishments that may be inflicted for offences on conviction by the Court Martial, listed in a sliding scale – The punishment of imprisonment finds mention at sub-clause (c) whereas that of dismissal from service is mentioned down below, in sub-clause (e) – In other words, the punishment of dismissal from service on conviction by Court Martial has been treated as a lesser punishment vis-à-vis the punishment of imprisonment for any period below 14 years – Held that being the position, the appellant cannot be heard to state that the punishment inflicted on him is graver than the one contemplated under the Act. (Para 11 and 12) Ex Sepoy Madan Prasad Vs. Union Of India And Others : 2023 STPL(Web) 114 SC

Army Act, 1950, Section 120 S – Service Law – Dismissal – Quantum of punishment – Judicial review – Powers of summary courts- martial – Explicit from the aforesaid provision of Section 120 that the said section deals with the offences punishable under Section 34 i.e., offences in relation to the enemy and punishable with death, Section 37, i.e., Army mutiny and Section 69 i.e., Civil Offences – Sub-section (2) of Section 120 places an embargo on an officer holding a SCM to try any of the offences mentioned in Sections 34, 37 and 69 without any reference to a District Court Martial or a Summary General Court Martial for trial of the alleged offender – Read in the aforesaid context, sub-section (4) of Section 120 clearly states that a SCM can pass any sentence as contemplated under the Act except for a sentence of death or transportation or of imprisonment for a term that may exceed a period of one year for an officer of the rank of Lieutenant Colonel and above and a period of three months for an officer below that rank, as specified in sub-section (5) – Held that quite clearly, the aforesaid provision is not applicable here and cannot come to the aid of the appellant for insisting that a District Court Martial or Summary General Court Martial ought to have been convened in his case, when SCM can try any offence punishable under the Act. (Para 14 and 15) Ex Sepoy Madan Prasad Vs. Union Of India And Others : 2023 STPL(Web) 114 SC

Taxation

Service Tax – Video-Tape Production – Appeal by revenue – Respondent plea that if the process of recording is absent then, merely rendering any services would not arise as such, accepted by Supreme Court – Held: On a conjoint reading of the definitions of the ‘Video Production Agency’ and ‘Video-Tape Production’, we find that the services such as editing, cutting, coloring etc. is only after recording is done of any programme, event or function on a magnetic tape or any other media or device. This is clear from the use of the words “services relating thereto” and such a Video-Tape Production when done by any professional videographer or any commercial concern engaged in the business of rendering such services is a ‘Video Production Agency’. Appeal by Revenue dismissed. (Para 3, 4) Commissioner of Service Tax-Iv Vs. Prime Focus Ltd. : 2023 STPL(Web) 107 SC

——–

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: 16 to 31 July, 2023

Stpl law

Supreme Court Digest: 16 to 31 July, 2023

Nominal Index

Subject Index

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Culpable Homicide

Dishonour of Cheque

Election

Electricity

Evidence

Family

Labour Law

Limitation

Murder

POCSO

Practice and Procedure

Sentence

Service

Taxation

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