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Consolidation of Judgments

August 2023

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 22-Sep-2023

Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr.

Keywords: Criminal Law, Constitutional Law, Representation of the People Act, 1950, Indian Penal Code, 1860 (IPC), Constitution of India, 1950 (COI)

Date of Judgement/Order – 04.08.2023

Bench Strength – 3 Judges

Composition of Bench – Justices BR Gavai, PS Narasimha, and Sanjay Kumar

Case In Brief:

  • Congress leader and former MP Rahul Gandhi over his remark ‘why all thieves share the Modi surname’ made in a political rally at Karnataka’s Kolar in 2019 was embroiled in litigation by Bharatiya Janata Party’s (BJP) MLA and former Gujarat minister Purnesh Modi under Sections 499 and 500 of the Indian Penal Code, 1860 (IPC).
  • A Court in Surat (Trial Court) district of Gujarat awarded him a conviction of two years jail sentence in March’2023. The trial Judge, in the order passed by him, has awarded the maximum sentence of imprisonment for two years.
  • The Court of Chief Judicial Magistrate, thereafter, suspended his sentence and granted him bail.
    • The conviction was however not suspended, and therefore, the former MP representing Kerala’s Wayanad constituency was disqualified as a Lok Sabha member in terms of Article 102(1)(e) of the Constitution of India, 1950 (COI) read with Section 8 of the Representation of the People Act, 1951.
  • Upon his conviction and disqualification from the Lok Sabha, he moved an appeal in the Sessions Court in Surat challenging his conviction.
    • His application seeking stay on his conviction in the criminal defamation case was not allowed although he was granted bail till the court disposed of his appeal.
  • Against the decision of the Sessions Court, Mr. Rahul Gandhi filed a criminal revision application in the High Court of Gujarat (HC). Justice Hemant Prachchhak of HC not only refused to grant him interim relief, but also dismissed his petition.
  • At last, after exhausting all his remedies, he moved the Supreme Court (SC) challenging the HC’s decision. He prayed for a stay of his conviction.

Verdict:

  • A three-judge bench of Justices BR Gavai, PS Narasimha, and Sanjay Kumar of the SC has stayed the conviction of Congress leader Rahul Gandhi in the criminal defamation case over his abovementioned remark but the Court observed that the utterances of Rahul Gandhi were not in "good taste" and that a person in public life ought to have been more careful while making public speeches.
  • Rahul Gandhi's disqualification as a Member of Parliament is now temporarily on hold due to the stay of his conviction.

Relevant Provisions:

Indian Penal Code, 1860

  • Section 499 - Defamation — Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
    • First Exception. —Imputation of truth which public good requires to be made or published — It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact.
    • Second Exception — Public conduct of public servants —It is not defamation to express in good faith any opinion whatever respecting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.
    • Third Exception — Conduct of any person touching any public question. — It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further.
    • Fourth Exception — Publication of reports of proceedings of courts. — It is not defamation to publish substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.
    • Fifth Exception.—Merits of case decided in Court or conduct of witnesses and others concerned.— It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further.
    • Sixth Exception. — Merits of public performance —It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further
    • Seventh Exception.—Censure passed in good faith by person having lawful authority over another.—It is not defamation in a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates
    • Eighth Exception. —Accusation preferred in good faith to authorised person.—It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.
    • Ninth Exception.—Imputation made in good faith by person for protection of his or other's interests —It is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
    • Tenth Exception —Caution intended for good of person to whom conveyed or for public good.— It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.
  • Section 500 - Punishment for defamation — Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Representation of the People Act, 1950

  • Section 8(3) - A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

Constitution of India, 1950

[Original Order]

Ketan Kantilal Seth v. State of Gujarat

Keywords: Supreme Court Rules, 2013, Civil Procedure Code, 1908

Date of Judgement/Order – 04.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices Surya Kant and J K Maheshwari

Case In Brief:

  • The accused Ketan Kantilal Seth has filed a Transfer Petition before the Supreme Court.
  • The SC issued notice in the Transfer Petition and also granted stay on further proceedings.
  • Intervention in the Transfer Petition was made by one Omprakash Bhauraoji Kamdi on the ground that he was an agriculturist and was by and large dependent on the financial aid of Nagpur District Central Co­operative Bank Limited (hereinafter referred to as NDCCB Ltd.), one of the banks allegedly defrauded by the accused.
  • Stay granted by this Court on an earlier occasion was modified on the pretext that the proceedings are at the stage of final arguments. This Court therefore directed the Trial Court to complete the hearing of arguments, though, restrained it from pronouncing the judgment.
  • The transfer of accused was allowed while the intervention application of intervenor was dismissed. The cases were accordingly transferred to the Court of Principal Judge, Bombay City Civil and Sessions Court, Mumbai.
  • The state of Maharashtra thereafter filed an application seeking modification/recall of the order allowing transfer application on the ground that no opportunity of hearing was afforded to the State on the day of final hearing to oppose the Transfer Petition.

Verdict:

  • The court held that the power of Supreme Court under the Order XL Rule 3 of the Supreme Court Rules of 2013 is limited and can only be exercised sparingly "Any alternation or addition to a judgment pronounced by Court can be made only to correct a clerical or arithmetical mistake or an error arising out of an accidental slip or omission".
  • The Court thereby allowed the petition filed by accused Ketan Kantilal Seth and directed the transfer of pending matters.

Relevant Provision:

Supreme Court Rules of 2013

Order XL Rule 3 - Applications for Transfer Under Article 139A (1) of The Constitution - (3) The notice shall be served through the High Court not less than six weeks before the date fixed for the final hearing of the application. Affidavits by the parties shall be filed in the Registry not later than two weeks before the date appointed for hearing and the affidavit in reply by the Attorney-General shall he filed not later than two days preceding the day of the hearing of the application. Copies of affidavits shall be served on the parties and the Attorney-General and the affidavits shall not be accepted in the Registry unless they contain an endorsement of service.

[Original Judgement]

Kishore Balkrishna Nand v. State of Maharashtra

Keywords: Indian Penal Code, 1860 (IPC); Exception 8 to Section 499 IPC

Date of Judgement/Order: 02.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices J.B. Pardiwala and Manoj Misra

Case In Brief:

  • The appellant (Kishore Balkrishna Nand) in the present matter lodged a complaint in writing addressed to the Sub Divisional Magistrate (SDM) stating that a shop had been put up by encroaching upon some land by the complainant.
  • That such shop of the complainant was creating nuisance, as many anti-social elements and road romeos had started visiting the said shop.
  • The SDM upon receipt of the complaint filed by the appellant issued notice.
  • While the proceedings before the SDM were pending, the complainant lodged a private complaint in the Court of the Judicial Magistrate, Worora, Chandrapur, Maharashtra for the offence of defamation.
  • Cognizance for the offence of defamation was taken by the Magistrate on the basis of the arguments made by the appellant in his written complaint addressed to the SDM, referred to above.
  • The appellant thereafter moved an application before the Court of the Judicial Magistrate with a prayer that the order of issue of process be recalled which was allowed.
  • Being aggrieved by such an order, the complainant challenged the same before the Sessions Court by filing a revision application.
    • The application was allowed and the order recalling the order of issue of process was quashed.
  • The appellant thereafter went before the High Court (HC) but thought not to press his petition and withdrew the same.
  • Eight years thereafter the appellant thought it fit to challenge the original order of issue of process before the HC which was declined on the ground of delay.
  • The appellant has therefore presented the present appeal.

Verdict:

The Supreme Court quashed the defamation case against a man accused of making defamatory allegations in his complaint before Sub Divisional Magistrate.

Relevant Provision:

Indian Penal Code, 1860

Section 499 - Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.

Exception 8 - Accusation preferred in good faith to authorised person — It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject-matter of accusation.

[Original Judgement]

Rana Kapoor v. Directorate of Enforcement & Anr.

Keywords: Prevention of Money Laundering Act, 2002 (PMLA)

Date of Judgement/Order: 04.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices Sanjiv Khanna and S.V.N. Bhatti

Case In Brief:

  • In March 2020, Rana Kapoor, the founder of Yes Bank, was initially detained by the Directorate of Enforcement on allegations of money laundering under the Prevention of Money Laundering Act, 2002.
    • This arrest was linked to his involvement in the Yes Bank - Dewan Housing Finance Limited (DHFL) scandal and various suspected financial irregularities concerning the distribution of loans to several prominent borrowers.
  • Yes Bank allegedly invested Rs 3,700 crore in short-term debentures of Dewan Housing Finance Limited (DHFL).
  • In the Yes Bank - DHFL scam, 17 banks were defrauded of more than Rs 34,000 crores by the home loan providers (DHFL).
  • Yes Bank also reportedly sanctioned a loan of Rs 750 crore to a subsidiary of DHFL.
  • According to officials from the investigating agency, it has been alleged that the co-promoter of Yes Bank approved loans of more than Rs 30,000 crore to several corporate entities, including DHFL. Rs 20,000 crore of these loans subsequently became non-performing assets (NPAs).
  • The ED has alleged that in lieu of these loans, Kapoor received illegal gratification in the accounts of his wife and two daughters.
  • Subsequently, Kapoor faced charges in additional loan fraud cases, including an alleged fraud of approximately Rs 4,300 crore at the Punjab and Maharashtra Cooperative (PMC) Bank in Maharashtra.
  • He filed his first Bail Application in Bombay High Court in February 2021 which was rejected and thereafter his second Bail Application rejected in May 2023 and the court stated “The allegations against applicant is that applicant is involved in laundering of public money. He has allegedly hatched conspiracy with owners of DHFL for siphoning huge amount. Though the applicant is in custody for three years, the involvement of public money shows that charge is serious. There is apprehension of tampering evidence. Hence, on the ground that applicant is in custody from 8th March 2020, bail cannot be granted.”
  • Hence the present Special Leave Petition was filed by Kapoor challenging the decision of the Bombay High Court.

Verdict:

The Supreme Court of India while refusing to grant bail to Rana Kapoor in a money laundering case stated that “Normally, the period undergone is substantial. But this is a case that rocked the entire banking system”.

Relevant Provision:

Prevention of Money Laundering Act, 2002 (PMLA)

  • It came into force on 1st July 2005.
  • The act is designed to combat money laundering and related financial crimes.
  • Money laundering can be associated with various criminal activities, including terrorism, drug trafficking, tax evasion, corruption, and organized crime.
  • The Act empowers authorities to identify and investigate instances of money laundering, seize and confiscate proceeds of crime, and prosecute individuals and entities involved in such illicit financial activities.
  • It also establishes procedures for reporting suspicious financial transactions by banks, financial institutions, and intermediaries.
  • The primary objectives of this act are:
    • Prevent and combat money laundering activities.
    • Confiscate and seize the proceeds of crime.
    • Establish a legal framework for reporting suspicious transactions.
    • Facilitate international cooperation in combating money laundering and related offenses.

[Original Order]

A. Sreenivasa Reddy v. Rakesh Sharma

Keywords: Indian Penal Code, 1860 (IPC); Code of Criminal Procedure, 1973 (CrPC), Prevention of Corruption Act, 1988

Date of Judgement/Order: 08.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices J.B. Pardiwala, B.R. Gavai

Case In Brief:

  • The appellant herein was serving as an Assistant General Manager in State Bank of India, Overseas Bank (Bank), Hyderabad.
  • It is alleged that he conspired with other co-accused to cheat the Bank by sanctioning a corporate loan of Rs. 22.50 crore in favour of M/s Sven Genetech Limited, Secunderabad (Accused No. 1).
  • It appears from the materials on record that the company referred to above had applied for a loan for the purpose of purchase of new equipments/implementation of the expansion programme.
  • The case against the appellant herein is that he was instrumental in approving the release of corporate loan without compliance of principle/disbursement conditions.
  • It is also alleged that the appellant herein hastily approved the release of cash credit with the fraudulent intention to cause wrongful gain to the accused.
  • The Central Bureau of Investigation (CBI) registered a First Information Report (FIR) against the appellant herein and other co-accused for the offences punishable under Sections 120-B r/w 420, 468 and 471 respectively of the Indian Penal Code, 1860 (IPC) and Section 13(2) r/w Section 13(1) of the Prevention of Corruption Act, 1988.
  • Upon conclusion of the investigation by the CBI, a charge sheet was filed in the Court of the Principal Special Judge (CBI Cases), Hyderabad in 2014 against all six persons including the appellant herein.
  • By an order, the Chief General Manager (MCG-I), SBI declined to accord sanction under Section 19 of the PC Act, 1988 to prosecute the appellant herein for the offences punishable thereunder. Thereafter, by a subsequent order the sanction was granted.
  • The Special Court at Hyderabad took cognizance of the offence enumerated above against the appellant.
  • The appellant in this case challenged the legality and legitimacy of the sanction order granted by the High Court of Telangana by filing a Writ Petition.
  • The HC allowed the writ petition and quashed the order of grant of sanction. Aggreived, the CBI filed a writ appeal which further failed as well.
  • The appellant then preferred a discharge application before the Special Court under Section 239 of CrPC which was declined.
  • Feeling aggrieved, the appellant herein went before the HC with a prayer that he should be discharged for the offences under the IPC as there is no sanction accorded by sanctioning authority under Section 197 of the CrPC which was rejected.
  • The appellant therefore presented the appeal in Supreme Court.

Verdict:

The Apex Court held that application of Section 197 CrPC is limited to cases involving public servants who cannot be dismissed from their positions except with the government's approval, protection of this section is not available to a person working in a Nationalized Bank.

Relevant Provision:

Code of Criminal Procedure, 1973 (CrPC)

Section 197 - Prosecution of Judges and public servants —

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 -

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.

Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted. Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB or section 509 of the Indian Penal Code (45 of 1860).

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein, the expression “State Government” were substituted.

(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 (43 of 1991), receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.

Prevention of Corruption Act, 1988

Section 19 - Previous sanction necessary for prosecution. —

(1) No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)—

(a) in the case of a person 4 [who is employed, or as the case may be, was at the time of commission of the alleged offence employed] in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person 4 [who is employed, or as the case may be, was at the time of commission of the alleged offence employed] in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office:

Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless—

(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and

(ii) the court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding.

Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant:

Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt:

Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month:

Provided also that the Central Government may, for the purpose of sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary.

Explanation — For the purposes of sub-section (1), the expression “public servant” includes such person—

(a) who has ceased to hold the office during which the offence is alleged to have been committed; or

(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) —

(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation —For the purposes of this section, —

(a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.

[Original Judgement]

Government of Kerala & Anr. v. Joseph and Others

Keywords: Civil Law, Kerala Land Conservancy Act, 1957, Supreme Court

Date of Judgement/Order – 09.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices Abhay S Oka and Sanjay Karol

Case In Brief:

  • This appeal challenged the decision made by the Kerala High Court on 5th August 2009.
  • The High Court's decision reversed the earlier decision made in 1995, by the District Judge in Thodupuzha, in First Appeal.
  • The High Court ruled that the land in question actually belongs to the Respondents, Joseph in this case, because they had legally occupied it for a long time, according to the principle of adverse possession.
  • The State contended that a question of adverse possession does not arise, on two grounds –
    • One, that the land is undisputedly Government land and
    • Two, that the respondents had possession of such land only for a period of 15 years which is less than required period of 30 years, after which adverse possession could be claimed against the State.
  • The Appellant (State) submitted that Section 20 of the Kerala Land Conservancy Act, 1957 bars any suit or other legal proceedings against the Government in respect of any action taken by it under the Act in respect of unauthorized occupation of land.

Verdict:

  • The Supreme Court dismissed the appeal stating that adverse possession must be open, clear, continuous, and hostile to the claim or possession of the other party.
  • To establish adverse possession the court said that all three classic requirements must co-exist -
    • nec vi, i.e., adequate in continuity;
    • nec clam, i.e., adequate in publicity; and
    • nec precario, i.e., adverse to a competitor, in denial of title and knowledge.

Relevant Provision –

Section 20 of the Kerala Land Conservancy Act, 1957 - Saving of suits by persons aggrieved by proceedings under this Act -

No suit against the Government shall be entertained in any Civil Court in respect of any order passed under this Act except upon the ground that the land in respect of which such order has been passed is not a land which is the property of Government whether a poramboke or not:

Provided that Civil Courts shall not take cognizance of any such suit unless it shall be instituted within one year from the date on which the cause of action arose.

[Original Judgment]

Shaji v. State of Kerala

Keywords: Criminal Law, Indian Penal Code, 1870 (IPC), Supreme Court

Date of Judgement/Order – 07.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices AS Bopanna and MM Sundresh

Case In Brief:

  • In this case the appellant on the fateful day woke up the deceased and demanded him to purchase a cigarette lighter.
  • The deceased was none other than the minor son of the appellant.
  • There was an altercation, followed by an attack on the deceased by the appellant.
    • The deceased died due to the injuries suffered.
  • The wife and another minor son of the appellant were also prosecution witnesses.
  • The appellant contended that he made an attempt to save the deceased by taking him to the hospital.
  • The Supreme Court in this case observed that the prosecution failed to establish that the case was of murder under Section 302 of the Indian Penal Code, 1860 (IPC) and not culpable homicide not amounting to murder under Section 304 Part I of IPC.

Verdict:

  • The court observed that the case on hand would fall under the offence punishable under Section 304 Part I of the IPC, and not under Section 302 of IPC.
    • It is trite that a duty is enjoined upon the Court of Sessions to undertake an exercise and to satisfy itself whether a case of culpable homicide not amounting to murder is made out or not, before proceeding with the trial of an accused for murder.
    • The materials available on record would clearly establish the fact that this is a case of a culpable homicide not amounting to murder, and therefore would fall under the offence punishable under Section 304 Part I of the IPC

Relevant Provision –

Section 304 of the Indian Penal Code, 1860 – Punishment for culpable homicide not amounting to murder -

  • Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
  • Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

[Original Judgment]

Manoj Kumar Soni v. State of Andhra Pradesh

Keywords: Criminal Law, Indian Evidence Act, 1872, Supreme Court

Date of Judgement/Order – 11.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices S Ravindra Bhatt and Dipankar Datta

Case In Brief:

  • Two appeals were filed by the accused Manoj and Kallu on whoch the Supreme Court gave a single judgment.
  • Manoj was convicted because a stolen jewellery had allegedly been sold to him and, despite being aware that the co-accused had sold him stolen goods, he still chose to receive and possess the same dishonestly.
  • The specific allegations against Kallu, former driver of the complainant, pertain to his involvement in a conspiracy with other co-accused persons.
    • The allegation against him was that he shared information with them, disclosing that the complainant had a substantial amount of money and valuable jewellery in her residence and other information.
  • The conviction of Kallu was based on his own disclosure as well as disclosure by one of the accused regarding money and weapons.
  • The conviction relied on the corroboration of the discovery of evidence by their own disclosure statements.

Verdict:

  • The court observed that although disclosure statements hold significance as a contributing factor in unriddling a case, in court’s opinion, they are not so strong piece of evidence sufficient on its own and without anything more to bring home the charges beyond reasonable doubt.
  • The court allowed the appeal and acquitted the appellants.

Relevant Provision –

Section 27 of the Indian Evidence Act, 1872 - How much of information received from accused may be proved —

Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

[Original Judgment]

Larsen Air Conditioning and Refrigeration Company v. Union of India

Keywords: Civil Law, Arbitration and Conciliation Act, 1996 (A&C Act)

Date of Judgement/Order – 11.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices S Ravindra Bhatt and Dipankar Datta

Case In Brief:

  • The dispute between the parties arose from a contract entered pursuant to being awarded the tender by the State related to a project. In the course of work, certain disputes arose.
  • The respondent (State) referred the dispute to arbitration, where the tribunal directed the first four respondents to pay 18% pendente-lite and future compound interest on the award.
  • The respondent challenged the award under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act).
  • The District Court dismissed the challenge on the ground that it could not sit in appeal over the award.
  • Aggrieved, the respondent preferred an appeal before the High Court in 2003.
  • The High Court considered the appeal by the State and reduced the compound interest of 18% to 9% simple interest per annum.
  • Aggrieved from this, the appellant filed an appeal before the Supreme Court.

Verdict:

  • The High Court erred in modifying the arbitral award and it has no power under Article 34 of the A&C Act to do such modification.

Relevant Provision –

Section 34 of the Arbitration and Conciliation Act, 1996 - Application for setting aside arbitral award

(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3).

(2) An arbitral award may be set aside by the Court only if—

(a) the party making the application establishes on the basis of the record of the arbitral tribunal that —

(i) a party was under some incapacity, or

(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or

(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matter beyond the scope of the submission to arbitration:

Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or

(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Past; or

(b) the Court finds that—

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or

(ii) the arbitral award is in conflict with the public policy of India.

Explanation 1.-- For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,--

(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or

(ii) it is in contravention with the fundamental policy of Indian law; or

(iii) it is in conflict with the most basic notions of morality or justice.

Explanation 2.-- For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.

(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:

Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by re-appreciation of evidence.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.

(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.

(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.

[Original Judgment]

Devesh Sharma v. Union of India

Keywords: Constitutional Law, Constitution of India, 1950, Supreme Court, National Council for Teacher Education (NCTE)

Date of Judgement/Order – 11.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices Aniruddha Bose and Sudhanshu Dhulia

Case In Brief:

  • A notification was issued on 28th June 2018 by the National Council for Teacher Education (NCTE).
  • This notification made B.Ed. degree holders eligible for appointment to the post of primary school teachers (classes I to V).
  • All the same, in spite of the above notification, when the Board of Secondary Education, State of Rajasthan, issued an advertisement on 11th January 2021, for Rajasthan Teacher Eligibility Test (RTET Level-1), it excluded B.Ed. degree holders from the list of eligible candidates.
  • This action of the Rajasthan Government was challenged before the Rajasthan High Court.
  • The petitioner has a B.Ed. degree, and as per the Notification dated 28th June 2018, he was eligible, like many other similar candidates.
    • Consequently, he filed his petition before the Rajasthan HC, inter alia, praying that the advertisement dated 11th January 2021 be quashed, as it was in violation of the notification dated 28th June 2018 issued by the NCTE.
  • Several other petitions were filed upon the same grievance.
  • The Rajasthan HC quashed the notification dated 28th June 2018, holding B.Ed. candidates to be unqualified for the posts of primary school teachers (Level-1).
  • Hence, the judgment of HC was challenged before the SC.
  • The SC observed the impact of Article 21A of the Constitution of India, 1950 upon the matter.

Verdict:

  • The Supreme Court held that Article 21A of the Constitution of India, 1950 also covers ‘quality education’ hence good teacher is the first assurance of ‘quality’ education in a school.
  • The court observed that the B.Ed. graduates get training of Secondary and Higher Education whereas D.El.Ed. graduates get training of Elementary education.
  • Therefore, by implication the inclusion of B.Ed. as a qualification amounts to lowering down of the ‘quality’ of education at Primary level,

Relevant Provision –

Article 21A of the Constitution of India, 1950 - Right to Education -

The State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may, by law, determine.

[Original Judgment]

Sindhu Janak Nagargoje v. The State of Maharashtra & Ors.

Keywords: Criminal Law, Code of Criminal Procedure, 1973, Supreme Court

Date of Judgement/Order – 08.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices Bela M. Trivedi and Dipankar Datta

Case In Brief:

  • Shivaji Bangar, the brother of the appellant was severely beaten and brutally assaulted by the accused on 2nd April 2020, and he succumbed to injuries on 3rd April 2020.
  • On 5th April 2020, the appellant had gone to the concerned police station to file the First Information Report (FIR), however the same was not registered.
  • Thereafter, the appellant submitted the complaints to the concerned respondents, but no action was taken to register the complaint.
  • The appellant approached the Bombay High Court by way of the Writ Petition, but the High Court dismissed the petition.
  • Aggrieved by the same, he filed an appeal before the Supreme Court.

Verdict:

While allowing the appeal, the Supreme Court reinforced that the registration of FIR is mandatory under Section 154 of CrPC, if the information discloses commission of cognizable offence.

The Court reiterated and summarized the law as follows:

  1. The registration of FIR is mandatory under Section 154 of CrPC, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
  2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
  3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
  4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
  5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
  6. As to what type and in which cases a preliminary inquiry is to be conducted will depend on the facts and circumstances of each case.
  7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and, in any case, it should not exceed 7 days. The fact of such a delay and the causes of it must be reflected in the General Diary entry.
  8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

Relevant Provision:

Section 154 of CrPC - Information in cognizable cases

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

[Original Judgement]

Yaddanapudi Madhusudhana Rao v. State of Andhra Pradesh & Ors.

Keywords: Criminal Law, Indian Penal Code, 1860, Supreme Court

Date of Judgement/Order – 09.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices M.M. Sundresh and J.B. Pardiwala

Case In Brief:

  • The marriage between the accused and his wife took place on 8th December 2002.
  • Following the death of his wife, her father who was then functioning as a Sub-Inspector of Police, had given a complaint against him alleging abetment of suicide.
  • The accused have been charge-sheeted under Sections 417, 498(A), 306, 406 and 201 of the Indian Penal Code, 1860 (IPC).
  • The accused filed a petition before the High Court for quashing of the proceeding, but it was later dismissed.
  • Thereafter an appeal was filed before the Apex Court.

Verdict:

  • While allowing the appeal, the Supreme Court quashed the proceedings against the appellant.
  • The Court also held that in order to attract the ingredients of Section 306 IPC, there must be evidence to substantiate the existence of suicide.

Relevant Provision:

Section 417 of IPC - Punishment for cheating

Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Section 498A of IPC - Husband or relative of husband of a woman subjecting her to cruelty

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Section 306 of IPC - Abetment of suicide

If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 406 of IPC - Punishment for criminal breach of trust

Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 201 of IPC - Causing disappearance of evidence of offence, or giving false information to screen offender

Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offend­er from legal punishment, or with that intention gives any infor­mation respecting the offence which he knows or believes to be false; if a capital offence. —

shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine; if punishable with imprisonment for life. —

and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprison­ment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years’ imprisonment. —

and if the offence is punishable with imprisonment for any term not extend­ing to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment pro­vided for the offence, or with fine, or with both.

[Original Judgement]

Amrish Rajnikant Kilachand v. Secretary General SCI

Keywords: Constitutional Law, Constitution of India, 1950, Supreme Court

Date of Judgement/Order – 11.08.2023

Bench Strength – 3 Judges

Composition of Bench – CJI D.Y Chandrachud and Justices J.B. Pardiwala and Manoj Misra

Case In Brief:

  • In this case a Public Interest Litigation (PIL) was filed by the petitioner before the Supreme Court for limiting the pages in the petitions filed in the Court.

Verdict:

  • While dismissing the petition, the Supreme Court observed that the concern of the Petitioner was laudable, but it would not be proper to issue a one size fits all direction.
  • The Court further held that the petitioner is at liberty to approach the Secretary General of the Supreme Court on any concrete suggestions he may have for expeditious disposal of cases.

Relevant Provision:

Public Interest Litigation

  • PIL is a legal tool that allows citizens to approach courts to seek justice in matters of public interest.
  • The seeds of the concept of PIL were initially sown in India by Justice Krishna Iyer, in 1976 and the PIL movement was heralded by Justice P.N. Bhagawati in the case of S.P. Gupta v. Union of India (1982).
  • The first reported case of PIL was Hussainara Khatoon v. State of Bihar (1979).
  • Any citizen can file a public case by filing a petition.
    • Under Art 32 of the Indian Constitution, in the Supreme Court.
    • Under Art 226 of the Indian Constitution, in the High Court.
    • Under sec. 133 of the Criminal Procedure Code,1973, in the Court of Magistrate

[Original Judgement]

H Vasanthi v. A. Santha (D) Through LRs.

Keywords: Constitutional Law, Constitution of India, 1950, Supreme Court

Date of Judgement/Order – 16.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices Bela M. Trivedi and S.V.N. Bhatti

Case In Brief:

  • In this case, the Plaintiff before the Trial Court filed a suit for the relief of declaration that the plaintiff with defendants is a coparcener by amended Section 29A of the Hindu Succession Act, 1956 (HSA).
  • Therefore, the plaintiff has a right to a one-third share in the suit property.
  • She prayed for an injunction, restraining defendants from disposing of one-third part claimed by the plaintiff to third parties.
  • The plaintiff also prayed for partition and separate possession of one-third in the plaint schedule through a preliminary and a final Decree.
  • The Trial Court dismissed the suit.
  • The plaintiff, aggrieved by the dismissal of the Suit, filed an appeal before the High Court of Judicature at Madras which was later dismissed.
  • Thereafter an appeal was filed before the Supreme Court.

Verdict:

  • While dismissing the appeal, the Supreme Court concluded that the plaintiff failed to demonstrate that the plaint schedule continued to be a coparcenary available for partition.
  • The Supreme Court observed that a partition can also be effected under a settlement or oral understanding and there is no prohibition to effect a partition otherwise than through an instrument in writing by duly complying with the requirement of law.

Relevant Provision:

Section 29A of HSA - Equal rights to daughter in coparcenary property

Notwithstanding anything contained in section 6 of this Act—

(i) In a joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by birth, become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son, inclusive of the right to claim by survivorship; and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(ii) at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son:

Provided that the share which a pre-deceased son or a pre-deceased daughter would have got at the partition if he or she had been alive at the time of the partition shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter: Provided further that the share allottable to the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased daughter as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (i) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(iv)Nothing in clause (ii) shall apply to a daughter married prior to or to a partition which had been affected before the commencement of the Hindu Succession (Andhra Pradesh Amendment) Act, 1986.

[Original Judgement]

Bachpan Bachao Andolan v. Union of India

Keywords: Criminal Law, Protection of Children from Sexual Offences Act, 2012 (POCSO), POCSO Rules, 2020, Supreme Court

Date of Judgement/Order – 18.08.2023

Bench Strength – 2 Judges

Composition of Bench – Justices Ravindra Bhat and Aravind Kumar

Case In Brief:

  • A writ petition was filed before the Supreme Court by the Bachpan Bachao Andolan which had raised issues related to protection provided to victims under the Protection of Children from Sexual Offences Act, 2012 (POCSO).
  • The Petitioner contended that the role of a support person as envisaged in the POCSO Rules, 2020, despite being a progressive step – remains unfulfilled, or is given effect to, in a partial or ad-hoc manner, thus limiting its positive potential in offering support to victims and their families.

Verdict:

  • The Supreme Court passed an order relating to the appointment of support persons and their qualifications. The Court issued directions for framing guidelines on their appointment.
  • The Court entrusted the Ministry of Women and Child Development with the task of notifying the National Commission for Protection of Child Rights (NCPCR) about the judgment and its obligations.

Relevant Provision:

Section 2(f) of POCSO Rules, 2020 - Support person

Support person means a person assigned by the Child Welfare Committee, in accordance with sub-rule (7) of rule 4, to render assistance to the child through the process of investigation and trial, or any other person assisting the child in the pre-trial or trial process in respect of an offence under the Act.

[Original Judgement]