The Lawyer's Digest: Supreme Court Judgments passed in July 2023

The Lawyer's Digest is a collection of concise summaries of all the judgments passed by the Supreme Court of India over the course of a month.

Topics have been sub-divided into areas of law including criminal law, environment law, service and labour law, etc. for ease of reading.

Here are the summaries of judgments passed in July 2023.

In Uggarsain v. The State of Haryana & Ors., the Court held that the High Court, while sentencing the accused under Section 304 Part II of the Indian Penal Code (IPC) read with Section 149, IPC, erred in not considering the gravity of the offence and not finding any distinguishing feature in the form of the separate roles played by each of them. The criteria of “sentence undergone” was held to be an inappropriate criterion and it was further noted that, inexplicably, the eldest amongst the accused suffered the maximum incarceration inter se while the youngest suffered the least incarceration, even though all the accused were concurrently found guilty.

[S. Ravindra Bhat J., Dipankar Datta J.]

[Key Words: sentencing, principle of proportionality, deterrence, punishment]

In Dhanraj N Asawani v. Amarjeetsingh Mohindersingh Basi & Ors., the issue was whether the appellant could lodge a first information report (FIR), which is based on the audit report, being in contravention of Section 81(5B) of the Maharashtra Co-operative Societies Act, 1960. It was contended that only the auditor or the Registrar is empowered to file an FIR in terms of Section 81(5B). The Court held that Section 81(5B) of the Act casts a positive obligation on the auditor or the Registrar to file an FIR. It does not use any negative expression to prohibit persons other than the auditor or the Registrar from registering an FIR. Therefore, it would be erroneous to conclude that Section 81(5B) debars persons other than the auditor or the Registrar from filing an FIR.

[DY Chandrachud CJI, JB Pardiwala J., Manoj Misra J.]

[Key Words : Economic Offences Wing, Maharashtra Cooperative Societies Act, Special law, Lalita Kumari, Code of Criminal Procedure]

In Ramesh Kumar v. The State of NCT of Delhi, the Court examined the permissibility of the trial court imposing a condition for deposit/payment to the complainant as a pre-requisite for the grant of pre-arrest bail inter alia under Section 438 of the Code of Criminal Procedure (CrPC). The Supreme Court held that the courts ought to adjudicate the question of grant or otherwise of anticipatory bail to an accused on the well-delineated tests, and imposition of condition to deposit / make payment to the complainant is not a valid consideration.  

[S Ravindra Bhat J., Dipankar Datta J.]

[Key Words : anticipatory bail, condition to deposit money, bail conditions, dispute of civil nature, S. 420 IPC]

In Sandeep Kumar v. The State of Haryana & Anr., the Court held that Section 319 (1), CrPC leaves it to the judicial discretion of the Court, where the trial is proceeding, to summon a person as an accused (who is so far not an accused in trial), if evidence has appeared before the Court that such a person has committed an offence for which he should be tried along with the other accused. Further, at the stage of Section 319, the Court merely has to arrive at a prima facie satisfaction, and the merits of the evidence cannot be looked into at that stage.

[CT Ravikumar J., Sudhanshu Dhulia J.]

[Key Words : Criminal trial, Section 319 Cr.P.C., prima facie satisfaction, cross examination, Hardeep Singh v. State of Punjab (2014) 3 SCC 92]

In Supriya Jain v. State of Haryana & Anr., the Court, while relying on Amit Kapoor v. Ramesh Chandra ((2012) 9 SCC 460 – Para 27), reiterated the principles to be borne in mind with regard to the quashing of a charge / proceedings either in exercise of jurisdiction under Section 397, CrPC or Section 482, CrPC. Applying the said principles, it was held that since the petitioner was found counting cash received by the principal accused in the presence of a listed witness and since she had conspired with the principal accused to cheat the second respondent, it could not be said that not even a prima facie opinion can be formed as to the commission of the offence. Therefore, the dismissal of petition under Section 482, CrPC was upheld and the petitioner was directed to undergo the trial

[S Ravindra Bhat J., Dipankar Datta J.]

[Key Words : S. 397 and 482 Cr.P.C., miscarriage of justice, power to be sparingly used, prima facie opinion]

In Vernon v. The State of Maharashtra & Anr., the appellants challenged the rejection of their bail plea arising out of offences under the Unlawful Activities (Prevention) Act, 1967. The Court held that to bring the appellants within the fold of Section 38 of the Act, the prosecution ought to have prima facie established their association with an intention to further the banned organisation’s terrorist activities. It would not be sufficient to demonstrate that one is an associate or someone professes to be associated with a terrorist organisation. In the absence of such evidence, the Court granted bail to the appellants.

[Aniruddha Bose J., Sudhanshu Dhulia J.]

[Key Words : Terrorist act, terrorist organisation, NIA Act]

In Mohd. Naushad v. State (Govt. of NCT of Delhi), the Court overturned the High Court’s judgment, incidentally authored Justice S Ravindra Bhat. The Court held all the accused guilty, sentencing all of them to life imprisonment without remission. The Court found the accused guilty on the basis of circumstantial evidence and held that the prosecution was able to prove “discovery of facts” under Section 27 of the Indian Evidence Act 1872 which were culled out on account of the confessions made by the accused persons. The Court held that “conspiracy” stood proved.

[BR Gavai J., Vikram Nath J., Sanjay Karol J.]

[Key Words: 1996 Lajpat Nagar Blasts, delay in trial, national interest, Section 27 of the Indian Evidence Act, recovery, sentencing, death sentence on the basis of circumstantial evidence, hostile witnesses]

In Abdul Ansar v. State of Kerala, the Court held that where the conductor of a bus had no knowledge that the deceased was boarding the bus due to overcrowding, the conductor could not be convicted for culpable homicide not amounting to murder. However, he was under the duty to verify that all passengers had safely boarded the bus before signalling the bus driver to start the bus. Thus, he was convicted of causing grievous hurt under Section 338, IPC

[AS Oka J., Rajesh Bindal J.]

[Key Words: S. 308 IPC, S. 338 IPC, Kerala Motor Vehicle Rules 1989 duty of a bus conductor]

In State of UP v. Sonu Kushwaha, the Court held that where the offence of aggravated penetrative sexual assault was committed prior to the amendment date, that is, August 16, 2019, the prior minimum punishment of 10 years would apply.

[AS Oka J., Rajesh Bindal J.]

[Key Words: POCSO, mandatory minimum]

In Anbazhagan v. State, the Court held that relevant considerations for determining intention were the nature of the weapon, the place where injuries were inflicted, the nature of the injuries caused, and the opportunity available for the accused. The Court held that merely because an act is committed with the knowledge that certain consequences may follow, intention may not be presumed. Intention requires a purposeful doing of a thing to achieve a particular end. The Court held that the requirement of the clause thirdly (in Section 300 of the IPC) was not the intention to cause death but the intention to cause the particular injury that was present. The Court held that for the purpose of holding an accused guilty under Section 304, IPC, it is not necessary for the accused to fall within the exceptions to Section 300, IPC. The Court also summarised that:

i.  If there was intention or knowledge as per Clauses 1 to 4 of Section 300 IPC, then the accused would be guilty of murder even if a single injury was caused;

ii. Even if there was intention or knowledge per Clauses 1 to 4 of Section 300 IPC, it would not be murder if the accused fell within any exception and:

• It would be an offence within Section 304 Part I, IPC if the accused fell within Clauses 1 to 3 of Section 300, IPC; and

• It would be an offence under Section 304 Part II if the accused fell within Clause 4 of Section 300, IPC.

iii. If an accused fell within the first 2 clauses of Section 299 IPC, they would be liable under the first part of Section 304 IPC. However, if they fell within the third clause, they would be punishable under the second part of Section 304 IPC;

iv. Even if a single injury were inflicted and such injury were objectively sufficient to cause death, the third clause of Section 300 would be attracted;

v. Section 304 would apply where:

• The case falls under Section 300 but is covered by an exception;

• When the injury caused is not of the higher probability which is covered by ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is ‘likely to cause death’ and the case does not fall within Section 300 (2) IPC; and

• When the act is done with the knowledge that death is likely to ensue but without the intention to cause death or an injury likely to cause death.

vi. The difference between the first and second parts of Section 304 IPC is that under the first part, the crime of murder is established and the accused then gets the benefits of the exceptions to the Section while in the latter, the crime of murder is never established.

vii. The word likely means probably and is different from possibly. If the chances of an event happening are more than half, then such thing will probably happen. To reach such conclusion, the court has to place itself in the place of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.

[BR Gavai J., JB Pardiwala J,]

[Key Words: S. 302 IPC, S. 34 IPC, difference between intent and knowledge, murder, culpable homicide not amounting to murder]

In Dilip Kumar v. Brajraj Shrivastava, the Court held that before taking recourse to Section 202(1) CrPC, a magistrate has to consider the statements of the complainant and the witnesses  and has to provide reasons for not examining any witness if it decides to do so.

[AS Oka J., Sanjay Karol J.]

[Key Words: S. 202 CrPC, inquiry by a magistrate, examination of witnesses, complaint]

In Pritinder Singh @ Lovely v. Punjab, the Court held that the circumstances from which guilt could be drawn ought to be fully established and that the chain of evidence must be so complete as to not leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

[BR Gavai J., Sanjay Karol J.]

[Key Words: circumstantial evidence]

In Pradeep v. The State of Haryana, the Court held that the corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Before recording the evidence of a minor, the Court held that the judicial officer must ask preliminary questions to ascertain whether the minor can understand the questions put to him and if he is in a position to give rational answers.

[AS Oka J., Rajesh Bindal J.]

[Key Words: S. 118 Evidence Act 1872, Oaths Act 1969]

In P Yuvaprakash v. State Represented by Inspector of Police, the Court held that since the documents produced during the trial were not documents being “the date of birth certificate from the school” or “the matriculation or equivalent certificate” from the concerned examination board or certificate by a corporation as stipulated under Section 94 of the Protection of Children from Sexual Offences Act (POCSO Act), the prosecution was duty bound to prove the minor status of the victim through  acceptable medical tests/examination. The bench held that the bone ossification test was the most accurate means of determining the age in the present case, which indicated the age to be over 18 years, and that the prosecution made a fatal error in not producing it before the Magistrate who recorded the testimony under Section 164, CrPC.

[S. Ravindra Bhat J., Aravind Kumar J.]

[Key Words: Section 34 of the Protection of Children from Sexual Offences Act, 2012, Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, ossification test, aggravated penetrative sexual assault, assault, criminal force, Section 10 of the Prohibition of Child Marriage Act]

In L/Nk Gursewak Singh v. Union of India & Anr., the Court held that the appellant would be eligible to take benefit of Exception 4 to Section 300 IPC, that is, he was guilty of culpable homicide not amounting to murder. The appellant was found guilty of the first part to Section 304 IPC as there was no premeditation in the incident, the parties were drunk, there was a quarrel over the touchy issue of seniority, the accused fired only once despite having a fully loaded weapon, helped the deceased into the ambulance and never mispresented the facts

[Abhay S Oka J., Sanjay Karol J.]

[army discipline, seniority, drunk, premeditation, provocation]

In Rohit Bishnoi v. The State of Rajasthan & Anr., the Court held that primary considerations which ought to be considered at the time of grant of bail included, but were not confined to, factors such as (i) the seriousness of the offence; (ii) likelihood of the accused fleeing from justice; (iii) impact of release of the accused on the prosecution witnesses; (iv) likelihood of the accused tampering with evidence. It was further reiterated that an order granting bail without recording reasons was, in fact, an illegal order and, that, an order granting bail, if passed in a casual, cryptic manner without any reasoning, is liable to be set aside under Article 136 of the Constitution.

[Nagarathna J., Prashant Kumar Mishra J.]

[Section 302 and 120B of the IPC, Section 3, 25 and 27 of the Arms Act, “cessante ratione legis cessat ipsa lex”, reasoned order, bail]

In Singrauli Super Thermal Power Station v. Ashwani Kumar Dubey, the Court found that there was a violation of natural justice where the NGT accepted the recommendations of a committee in the absence of considering objections filed by respondents and without giving any hearing to them. The Court added that the recommendations of an expert committee were not binding on the NGT.

[Nagarathna J, PK Mishra J.]

[Key Words: NGT, principles of natural justice, official notice doctrine]

In Ramesh Chand v. Management of Delhi Transport Corporation, the Court held that an employee could discharge the negative burden of establishing that he was not gainfully employed by an assertion on oath, in the absence of any positive material brought on record by the employer. The Court also held that a mere order of reinstatement does not render payment of back wages automatic.

[AS Oka J., Rajesh Bindal J.]

[Key Words: backwages, reinstatement, negative burden, employment]

In Indra Bai v. Oriental Insurance Company Ltd, the Court held that the term total disablement is determined by functional disability and not physical disability. Therefore, if a disablement occurs that incapacitates a workman from all work which he was capable of performing at the time of the accident, such disablement would be counted as total disablement for computing compensation under Section 4(1)(b) of the Employee’s Compensation Act 1923.

[JB Pardiwala J., Manoj Misra J.]

[Key Words: workman, compensation, injury, disablement]

In Bharatiya Kamgar Karmachari Mahasangh v. Jet Airways Ltd., two issues arose. First, as to which is the Appropriate Authority empowered to issue Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, and second, as to whether private settlement between the parties would override the Standing Order? On the first issue, the Court held that the Appropriate Authority is the State Government since the respondent (Jet Airways) is not, within the meaning of Section 2(b), under the control of the Central Government. On the second issue, it was held that a workman who has worked for 240 days in an establishment would be entitled to permanency, and no settlement which abridges such a right can be agreed upon, let alone be binding, and therefore, would not override the Standing Orders.

[Abhay S Oka J., Sanjay Karol, J.]

[Key Words : Industrial Disputes Act, CGIT, Workmen, Union, retrenchment, beneficial legislation]

In Ex. Sepoy Madan Prasad v. Union of India & Ors. the case arose out of an order of the Armed Forces Tribunal, upholding the appellant’s dismissal from service on the charge under Section 39(b) of the Army Act, 1950 for overstaying the leave granted to him without sufficient cause. The appellant was found to be a repeat offender, and the charge under adjudication was his sixth infraction for the very same offence. The Court held that Section 39(b) dealt with offences relating to absence without leave and provided for punishment by way of imprisonment up to three years or such less punishment as contemplated under the Act. Under Section 71, the punishment of dismissal from service was considered to be a lesser punishment than that of imprisonment, and therefore, the argument of the appellant that he was given a graver punishment than the one contemplated under the Act was rejected, and the order of the AFT was upheld.

[Hima Kohli J., Rajesh Bindal J.]

[Key Words : AFT, Army Act, unauthorised absence from duty, court martial, dismissal from service, proportionality of punishment, Court of Enquiry]

In Workmen through the Joint Secretary (Welfare), Food Corporation of India Executive Staff Union v. Employer in relation to the Management of the Food Corporation of India & Anr., the management of the Food Corporation of India filed a writ challenging an Award passed by the Industrial Tribunal. The Court noted that the writ was filed after having secured conditional interim relief. The FCI chose to implement the impugned Award though it was under no compulsion to do so, the Court found. The Court futher noted that FCI acquiesced and accepted the industrial award, even though it made its compliance subject to the writ. The Court stated held that a party to a proceeding could not be permitted to challenge an order but thereafter abide by it out of its own free will, garner benefit from it, get the opposite party to effectively alter its position, and then press its challenge after the passage of a considerable length of time.

[Krishna Murari J., Sanjay Kumar J.]

[Key Words: industrial disputes, Section 10(1)(d) and 17B of the Industrial Disputes Act 1947, casual employees, regularization, approbate and reprobate]

In The Madras Aluminum Co. v. The Tamil Nadu Electrician Board and Anr., the Supreme Court reiterated that there was a difference in commercial contracts concerning private parties and those which have the State as a party. It further held that the State was duty bound to act fairly and with promptitude and take decisions within reasonable time and not delay decisions unnecessarily, and further, that the unilateral amendment of agreements was not allowed under Indian law. In the present case, the Court deplored the act of the respondent-authority since it failed to act on the petitioner’s application for reduction of electricity supply.

[BR Gavai J., Sanjay Karol J., Aravind Kumar J.]

[Key Words: Sick Industrial Companies Act, 1985, unilateral amendment of contract, government contracts, Article 14, delay in decision making, Adjudicating Officer, Securities and Exchange Board of India v. Bhavesh Pabari (2019) 5 SCC 90, Mansaram v. S.P. Pathak and Ors 9 (1984) 1 SCC 125, Securities and Exchange Board of India v. Sunil Krishna Khaitan and Ors. (2023) 2 SCC 643]

In Gurbachan Singh (Dead) through LRs v. Gurcharan Singh (Dead) through LRs, the Supreme Court reiterated that in the rigours of Section 100 of the CPC do not apply to appeals arising out of Punjab and Haryana in accordance with Section 41 of the Punjab Courts Act. The Court also held that while it was true that a court, in second appeal, must not disturb facts established by the trial court or the first appellate court. However that principle was neither absolute nor a rule set in stone, the Court said.

[Abhay S Oka J., Sanjay Karol J.]

[Key Words: substantial question of law, Nazir Mohamed v. J. Kamala (2020) 19 SCC 57, Satyender v. Saroj 2022 SCC OnLine SC 1026]

In Dheeraj Singh v. Greater Noida Industrial Development Authority & Ors., it was held that where a decree given by the court of first instance is partly in favour of the respondent, but also against the respondent, under Order 41 Rule 22 of the CPC, such respondent could file their cross objections, cross appeal, or support the decree in whole. It was further held that the court of first appeal is under an obligation to return findings on the cross objections filed by the respondent. Since the same was not done, the Court remanded the matter back to the High Court for fresh adjudication [Krishna Murari J., Bela M Trivedi J.]

[Key Words : Land Acquisition Act, 1894, compensation, CPC, cross objections, court of first appeal]

In Arun Dev Upadhyaya v. Integrated Sales Services Ltd., the Court held that the power of review could not be exercised as an appellate power and has to be strictly confined to the scope and ambit of Order XLVII Rule 1, CPC and that an error on the face of the record must be such an error which, mere looking at the record should strike and not require any long-drawn process of reasoning on the points where there may conceivably be two opinions.

[BR Gavai J., Vikram Nath J.]

[Key Words: review petition, Gemini Bay Transcription Pvt Ltd v. Integrated Sales Service Ltd, arbitration, Supreme Court Rules 2013]

In Bhim Rao Baswanth Rao Patil v. K. Madan Mohan Rao & Ors., the Court held that the impugned judgment was correct in holding that any material brought on the record by the successful candidate, that is, the respondent in the election proceedings, cannot be considered within the framework of Order 7 Rule 11, CPC to reject the election petition altogether and that there cannot be any partial rejection of a suit. At the same time, The Bench noted that, in such circumstances, Order 12 Rule 6 might be a better fit than Order 7 Rule 11 inasmuch as the expression “otherwise” mentioned in Order 12 Rule 6 (1) is not confined to pleadings but includes documents filed with the pleadings or documents subsequently brought on the record which are admitted by the other party and that the court’s power under Order 12 Rule 6 was not only discretionary but required exercise of caution and that unless an admission is unambiguous, enabling the court to draw a decree, the power would not be exercised. On the facts, it was held that even if the election petitioner admitted certain facts, but not all, it was not sufficient to reject the petition wholly without a full blown trial to consider the effect of such admissions. Lastly, referring to Article 325 and Article 326 of the Constitution, it was held that while right to vote was a valuable right, it was, “paradoxically”, not a constitutional right but a mere statutory right. The voter’s right to known about the full background of a candidate was noted to be an added dimension to the tapestry of constitutional jurisprudence. Ergo, if the successful candidate/petitioner’s contentions were to be accepted, there would be a denial of a full-fledged trial denying the electors to know the true antecedents of its chosen candidate.  

[S. Ravindra Bhat J., Aravind Kumar J.]  

[disclosure of criminal antecedents, Section 8, 33A, 33B of Representation of People Act 1951, Election Symbols (Reservation and Allotment) Order 1968, interpolation, swaraj, Article 325 and 326 of the Constitution of India, voter’s rights]

In Government of NCT of Delhi v. Union of India, the Court referred the amendment to the Government of NCT of Delhi Act 1991 through the ordinance dated 19.05.2023 to a constitution bench

[DY Chandrachud CJ, PS Narasimha J, Manoj Misra J.]

[Key Words: Article 123 of the Constitution, NCT Ordinance]

Reserve Bank of India & Ors. v. A. K. Nair & Ors. dealt with the larger question of reservations in promotions for any class of citizens other than those covered by Article 16(4-A) of the Constitution. In this case, the respondent was a person with disability (PwD), seeking reservation in promotion while working with the Reserve Bank of India (RBI). The Court held that the omission of the RBI to accommodate the respondent in promotions after condoning the shortfall in his marks coupled with the neglect to identify a Group A post suitable for reservation was indefensible.  Since RBI did not even consider the respondent for the promotion after the judgment of the High Court in 2014, the Court granted the benefit of the subsequent judgment in Rajeev Kumar Gupta v. Union of India (2016) 13 SCC 153 to the respondent (which came to be pronounced in 2016, during the pendency of RBI’s appeal). The Court further invoked Article 142 of the Constitution “for doing complete justice” and directed the RBI to grant notional promotion to the respondent on the post of Assistant Manager Grade A with effect from the date of presentation of writ petition before the High Court.

[S Ravindra Bhat J., Dipankar Datta J.]

[Key Words : Persons with Disabilities Act, 1995, Persons with Disabilities Act, 2016, equal opportunity, Indira Sawhney, reservation in promotions, Reserve Bank of India, SC/ST candidates]

In State of Orissa & anr. v. Laxmi Narayan Das (Dead) thr. LRs & ors., the Supreme Court held that delay and laches shut out the remedy against the final record of rights. It was further held that a writ petition was not maintainable when a civil suit for the same relief was withdrawn without liberty for filing a fresh suit while simultaneously concealing material facts from the civil court and the writ court. Thirdly, it was held that a party cannot rely on notings in government files without any having order/communication relating to the same as the notings do not amount to an order or a decision.

[Abhay S Oka J., Rajesh Bindal J.]

[Key Words: liberty, delay and laches, file notings, concealment, Orissa Survey and Settlement Act]

In Priya Pramod Gajbe v. State of Maharashtra, the Court held that where the applicant produced documents revealing the caste status of their great grandfathers from the pre-constitution period, it proved the applicant’s caste status. The Court also noted that the affinity test could not be the determinative factor in modern times due to migration, modernisation and contact with other communities. The Court also held that there is no area restriction within Entry No. 18 of the Presidential Order on Scheduled Castes and Scheduled Tribes for the State of Maharashtra.

[BR Gavai J., JB Pardiwala J.]

[Key Words: affinity test, reservation]

In Trust Estate Khimji Keshawji v. The Kolkata Municipal Corporation, the Court held that a vague and non-speaking notice deserves to be quashed. The Court also held that in an area where no unfiltered water (water permitted to be used for purposes other than domestic purposes) was provided, residents could use the filtered water provided by the KMC for non-domestic purposes.

[BR Gavai J., Vikram Nath J.]

[Key Words: Kolkata Municipal Corporation Act 1980]

In Dr Jaya Thakur v. Union of India, the Court held that the Court could strike down a legislation only if the appropriate legislature does not have the competence to make the law or if the law takes away or abridges any of the fundamental rights provided in the Constitution. The Court also held that members of the Central Vigilance Commission (CVC) can only be removed only if the Court, on a reference by the President, conducts an inquiry and reports that the CVC or any vigilance commissioner ought to be removed on the ground of proved misbehaviour or incapacity. The Court examined the provisions of the statute and held that there were sufficient safeguards that insulate the offices of the CVC and the vigilance commissioner from extraneous pressures and permits them to act independently. The Court also held that when a committee could be trusted with regard to recommending the initial appointment, there was no reason to not trust such committee as to whether the tenure should be extended in public interest or not and that the committee is required to record reasons in writing in support of such recommendations. The Court held that while the effect of the court’s judgments could be nullified by a legislative act, removing the basis of such judgment, such retrospective amendment should be reasonable and not arbitrary. However, the nullification of a mandamus issued by the Court through an enactment would be impermissible, the Court held. As the Court had issued a mandamus in Common Cause v. Union of India WP (C) No. 1374 of 2020, the Court held that the Union of India could not have issued notifications dated November 17, 2021 and November 17, 2022 extending the tenure of Sanjay Kumar Mishra. However, in light of FATF review and as the process of appointing the Director of Enforcement would take time, in larger public interest, the Court permitted Sanjay Kumar Mishra to continue in office till July 31, 2023. [BR Gavai J., Vikram Nath J., Sanjay Karol J.]

[Key Words: Sanjay Kumar Mishra, Principal Special Director, Directorate of Enforcement, Central Vigilance Commission (Amendment) Act 2021, Delhi Special Police Establishment (Amendment) Act 2021 Fundamental (Amendment) Rules 2021]

In Vinod Kumar Sachdeva (Dead) Thr. Lrs. v. Ashok Kumar Sachdeva & Ors., the challenge was to an order passed by the High Court under Article 227 of the Constitution, whereby it had set aside the order of the trial court dismissing the application under Section 8 of the Arbitration and Conciliation Act, 1996 for reference of a dispute to arbitration, and continuation of civil suits before the trial court. The Court held that since there were several parties to the suit who were not parties to the arbitration agreement, and the MoU having been executed exclusively between the appellant and the first respondent, reference to arbitration under Section 8 was patently in error.

[DY Chandrachud CJI, JB Pardiwala J., Manoj Misra J.]

[Key Words : Civil Suit, S. 8 of the Arbitration and Conciliation Act, 1996, reference to arbitration, MoU, non-family shareholdings, Article 227 of the Constitution of India]

In Vinod Kumar & Ors. v. District Magistrate Mau & Ors., the issue was whether the district magistrate is competent to look into the legality and validity of the order passed by the Special Land Acquisition Officer   (SLAO)   under   Section   3G(5)   of   the National Highways Authority Act, 1956. The Court held that if any dispute arises as to the apportionment of the amount or to any person to whom the same is payable, then, the competent authority shall refer the dispute to the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated. The competent authority possesses certain powers of the civil court, but in the event of a dispute, the summary power vesting in the   competent authority, of rendering an opinion in terms of Section 3H(3), will not serve the purpose.

[BR Gavai J., JB Pardiwala J.]

[Key Words : Rules of Interpretation, Literal Rule, Mischief Rule, Court of original jurisdiction, SLAO, District Magistrate, Land Acquisition Act, 1894]

IBC

In Paschimanchal Vidyut Vitran Nigam Ltd v. Raman Ispat Private Limited, the Court held that a secured creditor had to take a calculated decision at the outset of the liquidation process – whether or not to relinquish its secured interest. If it relinquishes, it ranks high in the waterfall mechanism. If it does not and fails to realize all of its dues in the process of enforcement, it stands lower in priority and has to await distribution of assets upon realization of the liquidation estate by the liquidator. The Court also held that the specific mention of other class of creditors whose dues are statutory, such as dues payable to workmen, the provident fund, the pension fund, the gratuity fund clarifies that other dues payable to statutory corporations would not fall within the description of ‘amounts due to the Central or State government’.

[S Ravindra Bhat J., Dipankar Datta J.]

[Key Words: recovery of dues, SARFAESI, Sections 77 and 78 of the Companies Act, Rainbow Papers]

Writ cases

In Hari Prakash Shukla v. Uttar Pradesh, the Court held that the judgment in Banwasi Sewa only conferred a procedural right to be heard by the appropriate authority and not a substantive right of possession or inhabitation and that the said judgment is not recognised with respect to any community. The Court also held that High Courts, while exercising jurisdiction under Article 226 of the Constitution, could not re-appreciate evidence unless the authority passing the original order did so in excess of its jurisdiction or if the findings were patently perverse.

[Krishna Murari J., Ahsanuddin Amanullah]

[Key Words: writ, contempt, bhoomidars, forest, Banwasi Seva Ashram v. Uttar Pradesh, Article 226 of the Constitution, Forest Act]

In S Narahari v. SR Kumar, the Court held that while a review is maintainable before the High Court after the dismissal of a Special Leave Petition (SLP), the dismissal of the SLP by way of a non-speaking order does not attract the doctrine of merger. Even where an SLP was dismissed as withdrawn, if no reason was assigned by the Court while dismissing and leave was not granted, the dismissal would not be construed as laying down the law within meaning of Article 141 of the Constitution. However, the Court held that the matter ought to be placed before a larger bench of the Supreme Court as its reasoning could open the floodgates to litigation in matters where SLPs had been dismissed as withdrawn and no specific reasons were stated.

[Krishna Murari J., Ahsanuddin Amanullah]

[Key Words: compromise decree, multiplicity of proceedings, Order XLVII Rule 7 CPC]

Insurance and compensation

In Rahul Ganpatrao Sable v. Laxman Maruti Jadhav, the Court held that even though the disability in the case before the Court was 60-85%, the loss of income would be 100% since the disabilities rendered the person impossible to work. The deduction of 1/3^rd towards uncertainties was incorrect, the Court said, as the same is covered while applying the multiplier. Where the compensation is claimed by a survivor, no deduction could be made towards personal expenses, the Court added. It also held that where the appellant was 19 years old, the multiplier to be applied would be 18, as the appellant would require 24 hours assistance.

[BR Gavai J., Vikram Nath J.]

[Key Words: compensation, motor accident, multiplier, Pranav Sethi]

In Hem Raj v. The New India Assurance Co. Ltd., the appeal was filed by the insured seeking indemnification of the medical expenses incurred by him, from the insurance company. Though the district consumer disputes redressal forum and the State consumer commission allowed the claim of the insured, the National Consumer Disputes Redressal Commission (NCDRC) disallowed the disbursement on the premise that there was no evidence on record. The Supreme Court set aside the order of the NCDRC and held that the insured could not be deprived of the amount spent by him towards the medical expenses owing to the injuries sustained by the injured in respect of which there was a third party insurance coverage.

[BV Nagarathna J., Ujjal Bhuyan J.]

[Key words : Third party Insurance, Medical expenses, NCDRC, medical bills, insurance policy]

In Shantabai Ananda Jagtap & Anr. v. Jayram Ganpati Jagtap & Anr., it was held that the appellant’s claim for compensation under the Employees Compensation Act, 1923 with a delay of 9 years in filing the application under the 1923 Act was fatal to the claim for award of compensation. The claim was further rejected on the ground that the appellant could not prove the master and servant relationship between the deceased and the respondent no. 1, that is, the owner of the vehicle.

[Abhay S Oka J., Rajesh Bindal J.]

[Key Words : Commissioner for Workmen’s Compensation, Insurance, Motor Vehicles Act, 1988, Motor Accidents Claims Tribunal, delay in filing the claim, master and servant relationship, employer and employee]

Contempt of Courts Act

In Gostho Behari Das v. Dipak Kumar Sanyal & Ors., the issue was whether the petitioner’s license to practise medicine could be suspended in exercise of powers under the Contempt of Courts Act, 1971. Relying on In re. CS Karnan (2017) 7 SCC 1 and In re. Prashant Bhushan (2021) 3 SCC 160, the Court held that in terms of Section 12(1) of the Act, the punishment prescribed is simple imprisonment up to six months, and a fine not exceeding ₹ 2,000, which, under Section 12(2) is “notwithstanding anything contained in any other law for the time being in force”. Therefore, no other punishment could be prescribed to a person guilty of committing contempt of Court, the bench held.

[BR Gavai J., Sanjay Karol J.]

[Key Words : National Medical Commission Act, 2019, contempt, medical practitioner, unauthorised construction, demolition]

Consumer Law

In M/s Universal Sompo General Insurance Co Ltd v. Suresh Chand Jain, the Court held that an appeal to the Supreme Court was available only against orders of the NCDRC passed under Section 21(a)(i) of the Consumer Protection Act, 1986 Act and 58(1)(a)(i) or 58(1)(a)(ii) of the 2019 Act. In other words, a direct appeal to the Supreme Court is only available against orders passed by the NCRDC in its original jurisdiction or as the court of first instance. No such further appeal lies against the orders passed by the NCDRC in exercise of its appellate or revisional jurisdiction. The Court explained that parties must approach the jurisdictional High Court under Article 227 of the Constitution against NCDRC orders passed in exercise of its appellate or revisional jurisdiction, and that they cannot directly approach the Supreme Court under Article 136 of the Constitution in such cases.

[JB Pardiwala J, Manoj Misra J.]

[Key Words: Consumer Protection Act 1986, appeal against orders of the NCDRC]

Property Law

In Ravi Khandelwal v. M/s Taluka Industries, the Court held that the objective of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 was to create an impediment in the institution and trial of the suit for a period specified under the Act to protect the tenant from being evicted within 5 years. Therefore, in a dispute which had been pending for over 38 years, the Court upheld the decree of eviction of the first appellate. 

[SK Kaul J.]

[Key Words: Art 142 of the Constitution of India, mockery of justice]

Indirect Tax

In Commissioner, Central Excise and Customs & Anr. v. Reliance Industries Ltd., it was held that in any scheme of self assessment, it is the responsibility of the assessee to determine his liability of duty correctly. The extent of disclosure that an assessee makes is also linked to his belief as to the requirements of law. The assessee determined his assessable value on the basis of an interpretation given by CESTAT, and the fact that the view taken by the CESTAT was subsequently overturned by the Supreme Court, does not make the assessee’s belief as mala fide.

[Krishna Murari J., Bela M Trivedi J.]

[Key Words : extended period of limitation, S. 11A(1) Central Excise Act, 1944, differential duty, assessable value, CESTAT, Show Cause Notice]

About the authors: Subhro Prokas Mukherjee, Sahil Tagotra and Abhinav Hansaraman are advocates mainly practicing in Delhi at the Supreme Court of India.