Supreme Court Weekly April 8 - 12, 2019

• Supreme Court Weekly April 1 - 5, 2019

Arbitration and Conciliation Act, 1996 - Ss. 11 (6A) r/w. 7 (2) - an arbitration clause in an agreement would not exist when it is not enforceable by law. Rohinton Fali Nariman & Vineet Saran, JJ. Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd., C.A. No. 3631 of 2019 10-04-2019

Army Law - the Division Bench went wrong in holding that the learned Single Judge ought to have decided the point whether the posting of the First Respondent as Defence Attaché/Military Attaché to USA should be treated as Extra Regimental Employment. As the said issue was not raised by the First Respondent in his Statutory Complaint filed in February, 2005 and as the First Respondent did not even seek for a declaration in the Writ Petition, the learned Single Judge was right in not deciding the issue of the posting of the First Respondent as Defence Attaché/Military Attaché to USA being treated as Extra Regimental Employment. L. Nageswara Rao & M.R. Shah, JJ. Union of India v. Major General Arun Roye, C.A. No. 7436 of 2010 09-04-2019

Benami Transactions (Prohibition) Act, 1988 - Whether in the facts and circumstances of the case and merely because some financial assistance has been given by the father to the sons to purchase the properties, can the transactions be said to benami in nature? L. Nageswara Rao & M.R. Shah, JJ. P. Leelavathi (D) by LRs. v. V. Shankarnarayana Rao (D) by LRs., C.A. No. 1099 of 2008 09-04-2019

Central Excise Act, 1944 - Whether the amount included as Dharmada by a manufacturer and credited for charitable purposes is liable to be included in the assessable value of manufactured goods; the seller having merely acted as conduit between the purchaser and charity. S.A. Bobde, Deepak Gupta & Vineet Saran, JJ. D.J. Malpani v. Commissioner of Central Excise, Nashik, C.A. No. 5282 of 2005 09-04-2019

Cinematograph Act 1952 - SC issues a Mandamus restraining the state from taking recourse to any form of extra constitutional means to prevent the lawful screening of the feature film Bhobishyoter Bhoot. D.Y. Chandrachud & Hemant Gupta, JJ. Indibility Creative Pvt. Ltd. v. Govt of West Bengal, W.P. (C) No. 306 of 2019 11-04-2019

Civil Procedure Code, 1973 - Under Order XLI Rule 27 CPC, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are: (I) Where the trial Court had refused to admit the evidence though it ought to have been admitted; (II) the evidence was not available to the party despite exercise of due diligence; and (III) the appellate Court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. An application for production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, court can receive additional documents. R. Banumathi & R. Subhash Reddy, JJ. Jagdish Prasad Patel (Dead) Thr. Lrs. v. Shivnath, C.A. No. 2176 of 2007 09-04-2019

Commission of Inquiry Act, 1952 - Power Project Agreement (PPA) - Though normally in such a case a judicial inquiry should have been conducted but as far as the present case is concerned, more than a quarter of century has elapsed since the first PPA was executed. The foreign corporation and the original project proponents are no longer available. Most of the senior officials would have retired and virtually no action can be taken against them. Furthermore, the commission of inquiry even if continued or constituted afresh, will take its own time and, as opined by Members of the Godbole Committee, the constitution of such commission of inquiry would serve no useful purpose. Ranjan Gogoi (CJI), Deepak Gupta & Sanjiv Khanna, JJ. Center of Indian Trade Unions, A Federation of Registered Trade Unions v. State of Maharashtra, S.L.P. (C) No. 7734 of 1997 11-04-2019

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974 - Ss. 10, 10A & 12A - Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SAFEMA), 1976 - Orders of detention under COFEPOSA can be of three kinds; (a) under Section 3(1) simplicitor, or (b) one passed under Section 3(1) followed by Declaration under Section 9 or (c) one passed under Section 3(1) and Section 12A. U.U. Lalit & Hemant Gupta, JJ. Narender Kumar v. Union of India, Crl.A. No. 1492 of 2009 08-04-2019

Criminal Law - An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable - Possibility of another view cannot be a ground for reversing acquittal by the Appellate Court. L. Nageswara Rao & M.R. Shah, JJ. Sham Lal v. State of Haryana, Crl.A. No. 1013 of 2008 09-04-2019

Criminal Procedure Code, 1973 - Idol Theft Case - Whether the High Court, in exercise of jurisdiction under Article 226 of the Constitution of India can appoint a police officer after his superannuation to head a Special Investigation Team (S.I.T.) to carry out investigations and other functions, which can be exercised by a police officer under the Code of Criminal Procedure? Ashok Bhushan & K.M. Joseph, JJ. State of Tamil Nadu v. Elephant G. Rajendran, C.A. No. 3918 of 2019 12-04-2019

Criminal Procedure Code, 1973 - Ss. 161 - “Dehati Nalishi” - There is no plausible explanation given from the side of prosecution as to why the names of these three accused were missing both in the “Dehati Nalishi” as well as in the statement of Mansingh recorded under Section 161 Cr.P.C. Therefore, a grave doubt is raised with regard to the presence of these three accused at the place of incidence. The benefit of doubt obviously has to go to the accused. S.A. Bobde, Sanjay Kishan Kaul & Deepak Gupta, JJ. Peer Singh v. State of Madhya Pradesh, Crl.A. No. 743 of 2012 09-04-2019

Criminal Procedure Code, 1973 - Ss. 273, 299 & 317 - Evidence to be taken in presence of accused - Record of evidence in absence of accused - Provision for inquiries and trial being held in the absence of accused in certain cases - Discussed. U.U. Lalit & Indu Malhotra, JJ. Atma Ram v. State of Rajasthan, Crl.A. No. 656 of 2019 11-04-2019

Displaced Persons (Compensation & Rehabilitation) Act, 1954 - If the appellants are directed to pay some more reasonable amount considering the fact that number of years have passed and even the price of the land has also increased, it would meet the ends of justice. At the same time, to direct the appellants to pay the present market value / market price would also be unreasonable. L. Nageswara Rao & M.R. Shah, JJ. Gurdev Singh v. Union of India, C.A. No. 3894 of 2019 12-04-2019

Dowry Prohibition Act, 1961 - Ss. 3, 4 & 6 - Dying Declaration  - Minor Contradictions / Omissions - Trial Court gave undue importance to the initial statement of the victim while giving the history to the doctor when she was admitted and when she gave the history of accidental burns while cooking in kitchen. However, the trial Court did not consider her explanation on the above gave in the dying declaration. Even considering the surrounding circumstances and the medical evidence and the other evidence, the defence has miserably failed and proved that it was an accidental burns / death. L. Nageswara Rao & M.R. Shah, JJ. Vijay Mohan Singh v. State of Karnataka, Crl.A. No. 1656 of 2013 10-04-2019

Evidence Law - Mangalsutra, peinjan and even glass bangles are such ornaments which an Indian married woman would normally not remove. In Indian society these are normally worn by the ladies all the times. Therefore, the defence version that the deceased took off all these ornaments and then went to the kitchen and committed suicide cannot be totally ruled out. S.A. Bobde & Deepak Gupta, JJ. Sampat Babso Kale v. State of Maharashtra, Crl.A. No. 694 of 2011 09-04-2019

Evidence Law - Witness - Neighbour - None of the witnesses from the neighbourhood have been examined. Even as per the prosecution case it was the neighbours who first raised an alarm. There is no explanation why none of them have been examined. It is also the prosecution case that the accused husband along with another neighbour went to the hospital to arrange for an ambulance. This person has not been examined. The non­-examination of these important witnesses leads to non-­corroboration of the dying declaration. The best witnesses would have been the neighbours who reached the spot immediately after the occurrence. They would have been the best persons to state as to whether the victim told them anything about the occurrence or not. S.A. Bobde & Deepak Gupta, JJ. Sampat Babso Kale v. State of Maharashtra, Crl.A. No. 694 of 2011 09-04-2019

Industrial Disputes Act, 1947 - General principle of res judicata applies to an industrial adjudication. Abhay Manohar Sapre & Indu Malhotra, JJ. Chairman and Managing Director, The Fertilizers and Chemicals Tranvancore Ltd. v. General Secretary FACT Employees Association, C.A. No. 3803 of 2019 11-04-2019

Judicial Order - Every judicial or / and quasi­-judicial order passed by the Court / Tribunal / Authority concerned, which decides the lis between the parties, must be supported with the reasons in support of its conclusion. The parties to the lis and so also the appellate / revisionary Court while examining the correctness of the order are entitled to know as to on which basis, a particular conclusion is arrived at in the order. In the absence of any discussion, the reasons and the findings on the submissions urged, it is not possible to know as to what led the Court / Tribunal / Authority for reaching to such conclusion. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Kushuma Devi v. Sheopati Devi (D), C.A. No. 3448 of 2019 08-04-2019

Hindu Religious and Charitable Endowments Act, 1959 (Tamil Nadu) - Ss. 77 to 85 - Encroachment on the land belonging to religious institutions. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. S. Kumar v. Commissioner, C.A. No. 3461 of 2019 08-04-2019

Income Tax Act, 1961 - S. 260­A - Appeal - Substantial Question of Law - Whether the High Court was right in dismissing the Revenue's appeal in limine holding that it did not involve any substantial question of law? Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Pr. Commissioner of Income Tax 6 v. Nokia India Pvt. Ltd., C.A. No. 3450 of 2019 08-04-2019

Land Law - Housing and Area Development (Disposal of Land) Regulations, 1982 (Maharashtra) - Regulation 16 - Allotment of Plot. L. Nageswara Rao & M.R. Shah, JJ. Jvpd Scheme Welfare Trust Thr. Its Seretary Vijay Amrut Gone v. The Chief Officer, M.H.A.D. Brd Grih Nirman Bhavan, C.A. No. 4571 of 2009 09-04-2019

Land Law - Allotment of Law - Primary School - Larger Public Interest. L. Nageswara Rao & M.R. Shah, JJ. Jawed Urdu Primary School Through Its Secretary v. Collector of Mumbai, C.A. No. 611 of 2008 09-04-2019

Maintenance of Internal Security Act (MISA), 1971 - S. 3(2) - Defence of India Act, 1971 - S. 6(6)(c) - Internal Security (Amendment) Ordinance, 1974 - S. 2(1)(c)(iii) - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974 - Ss. 10, 10A & 12A - Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SAFEMA), 1976 - Maximum period of detention - Extension of period of detention - Special provisions for dealing with emergency - Application. U.U. Lalit & Hemant Gupta, JJ. Narender Kumar v. Union of India, Crl.A. No. 1492 of 2009 08-04-2019

Motor Vehicles Act, 1988 - In the case of a motor accident where there is death of a person, who is a bachelor, whether the age of the deceased or the age of the dependents would be taken into account for calculating the multiplier. Held, it is the age of the deceased which has to be taken into account and not the age of the dependents. S.A. Bobde, Sanjay Kishan Kaul & Mohan M. Shantanagoudar, JJ. Royal Sundaram Alliance Insurance Company Ltd. v. Mandala Yadagari Goud, C.A. No. 6600 of 2015 09-04-2019

Negotiable Instruments Act, 1881 - Ss, 118, 138 & 139 - Presumptions as to negotiable instruments - Presumption in favour of holder - Legal principles regarding nature of presumptions to be drawn under Section 139 of the Act and the manner in which it can be rebutted by an accused - The complainant being holder of cheque and the signature on the cheque having not been denied by the accused, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. Ashok Bhushan & K.M. Joseph, JJ. Basalingappa v. Mudibasappa, Crl.A. No. 636 of 2019 09-04-2019

Official Secrets Act, 1923 - Penalties for Spying - There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties. Ranjan Gogoi (CJI), Sanjay Kishan Kaul & K.M. Joseph, JJ. Yashwant Sinha v. Central Bureau of Investigation through its Director, R.P. (Crl. ) No. 46 of 2019 10-04-2019

Penal Code, 1860 - S. 34 - Common Intention - The true purport of Section 34 IPC is that if two or more persons intentionally do an act jointly, the position of law is just the same as if each of them have done it individually. The process of law is intended to meet a situation in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention. A.M. Khanwilkar & Ajay Rastogi, JJ. Palakom Abdul Rahiman v. Station House Officer Badiadka Police Station, Kerala, Crl.A. No. 725 of 2012 09-04-2019

Penal Code, 1860 - Ss. 34 & 149 - Scope of - It would depend on facts of each case as to whether Section 34 or Section 149 or both the provisions are attracted. The non­-applicability of Section 149 IPC is no bar in convicting the accused persons under Section 302 IPC read with Section 34 IPC provided there is evidence which discloses commission of offence in furtherance of common intention. A.M. Khanwilkar & Ajay Rastogi, JJ. Palakom Abdul Rahiman v. Station House Officer Badiadka Police Station, Kerala, Crl.A. No. 725 of 2012 09-04-2019

Penal Code, 1860 - Ss. 90, 375 & 376 - Rape - Consent - If it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC. L. Nageswara Rao & M.R. Shah, JJ. Anurag Soni v. State of Chhattisgarh, Crl.A. No. 629 of 2019 09-04-2019

Penal Code, 1860 - Ss. 302 r/w. 34 - The application of principles enunciated in Section 34 IPC, when an accused is convicted under Section 302 read with Section 34 IPC, in law means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. A.M. Khanwilkar & Ajay Rastogi, JJ. Palakom Abdul Rahiman v. Station House Officer Badiadka Police Station, Kerala, Crl.A. No. 725 of 2012 09-04-2019

Penal Code, 1860 - Ss. 302 r/w. 149 & 148 - There is no plausible explanation given from the side of prosecution as to why the names of these three accused were missing both in the “Dehati Nalishi” as well as in the statement of Mansingh recorded under Section 161 Cr.P.C. Therefore, a grave doubt is raised with regard to the presence of these three accused at the place of incidence. The benefit of doubt obviously has to go to the accused. S.A. Bobde, Sanjay Kishan Kaul & Deepak Gupta, JJ. Peer Singh v. State of Madhya Pradesh, Crl.A. No. 743 of 2012 09-04-2019

Penal Code, 1860 - S.302 & 304 Part I - Murder - accused used a deadly weapon­-axe on the vital part of the body­-head, which proved to be fatal. A single blow on the vital part of the body like head and that too by deadly weapon­axe and used with force which proved to be fatal, was sufficient to hold that it was a case of murder within the definition of Section 300 of the IPC. L. Nageswara Rao & M.R. Shah, JJ. State of Rajasthan v. Kanhaiya Lal, Crl.A. No. 645 of 2019 10-04-2019

Penal Code, 1860 - S.302 & 304 Part I - Murder - Merely because the altercation might have taken place much earlier and not immediately prior to and/or at the time of commission of the offence, it cannot be inferred that there was no intention on the part of the accused to cause death of the deceased. L. Nageswara Rao & M.R. Shah, JJ. State of Rajasthan v. Kanhaiya Lal, Crl.A. No. 645 of 2019 10-04-2019

Penal Code, 1860 - S. 302 / 498A r/w. 34 - Dying Declaration - A dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and not a result of any extraneous influence, the Court can convict the accused only on the basis of a dying declaration. S.A. Bobde & Deepak Gupta, JJ. Sampat Babso Kale v. State of Maharashtra, Crl.A. No. 694 of 2011 09-04-2019

Penal Code, 1860 - Ss. 302 r/w 34, 498A, 304­B r/w. 34 - Dying Declaration  - Minor Contradictions / Omissions - Trial Court gave undue importance to the initial statement of the victim while giving the history to the doctor when she was admitted and when she gave the history of accidental burns while cooking in kitchen. However, the trial Court did not consider her explanation on the above gave in the dying declaration. Even considering the surrounding circumstances and the medical evidence and the other evidence, the defence has miserably failed and proved that it was an accidental burns / death. L. Nageswara Rao & M.R. Shah, JJ. Vijay Mohan Singh v. State of Karnataka, Crl.A. No. 1656 of 2013 10-04-2019

Penal Code, 1860 - Ss. 354(a) - Protection of Children from Sexual Offences Act, 2012 - Ss. 9(f), 10 & 11 - Employees of Private Schools (Conditions of Service) Rules, 1981 (Maharashtra) - Allegations of sexual harassment of adolescent girls. U.U. Lalit & Indira Banerjee, JJ. Secretary, Lucy Sequeira Trust v. Kailash Ramesh Tandel, C.A. No. 3456 of 2019 08-04-2019

Penal Code, 1860 - S. 498A - the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code. Ranjan Gogoi (CJI) & L. Nageswara Rao & Sanjay Kishan Kaul, JJ. Rupali Devi v. State of Uttar Pradesh, Crl.A. No. 71 of 2012 09-04-2019

Practice and Procedure - The practice of summoning officers to court is not proper and does not serve the purpose of administration of justice in view of the separation of powers of the Executive and the Judiciary. If an order is not legal, the Courts have ample jurisdiction to set aside such order and to issue such directions as may be warranted in the facts of the case. Sanjay Kishan Kaul & Hemant Gupta, JJ. N.K. Janu, Deputy Director Social Forestary Division, Agra v. Lakshmi Chandra, C.A. No. 3740 of 2019 10-04-2019

Presidency Small Causes Act, 1882 - Section 41 - As much as no order is passed either under Section 41 or under Section 43 of the Act by the Small Causes Court, the High Court has committed error in issuing directions to the appellant to vacate the premises, which is subject matter of the petition. R. Banumathi & R. Subhash Reddy, JJ. Pradeepkumar Gordhandas Patel v. Chandrakant Jivanlal Patel, C.A. No. 3591 of 2019 09-04-2019

Protection of Children from Sexual Offences Act, 2012 - Ss. 9(f), 10 & 11 - Employees of Private Schools (Conditions of Service) Rules, 1981 (Maharashtra) - Allegations of sexual harassment of adolescent girls. U.U. Lalit & Indira Banerjee, JJ. Secretary, Lucy Sequeira Trust v. Kailash Ramesh Tandel, C.A. No. 3456 of 2019 08-04-2019

Rent Control and Eviction - Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Uttar Pradesh) - S.21(1)(a)(b) - the building was in a dilapidated condition and therefore the same is required to be demolished and still even after period of approximately 24 years, the building stands and as the tenants are ready and willing to get the building in question repaired at their own cost and the same is not to be deducted from the rent, one opportunity is required to be given to the tenants to get the building repaired. L. Nageswara Rao & M.R. Shah, JJ. Ram Prakash v. Puttan Lal, C.A. No. 3895 of 2019 C.A. No. 3895 of 2019 12-04-2019

Service Law - Division Bench has rightly set aside the action of the FCI in rejecting the case of the original writ petitioner and has rightly directed the FCI to consider the case of the original writ petitioner for appointment on merits, if all other conditions stand satisfied. L. Nageswara Rao & M.R. Shah, JJ. Food Corporation of India v. Rimjhim, C.A. No. 3600 of 2019 09-04-2019

Service Law - Regional Rural Banks Act, 1976 - S. 29 - Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1998 - Promotion - As the promotion to the post of Junior Management Scale II shall be made on the basis of seniority­-cum­merit, the only requirement would be that after it is found that the candidates have possessed the minimum necessary merit, namely, minimum 40% qualifying marks in the written test and minimum 12 marks each out of 20 marks each in interview and the performance appraisal reports respectively, thereafter the candidates are required to be promoted in the order of seniority, irrespective of anyone among them having obtained more marks. L. Nageswara Rao & M.R. Shah, JJ. Shriram Tomar v. Praveen Kumar Jaggi, C.A. No. 3603 of 2019 09-04-2019

Service Law - Regularisation of Daily Wages Appointments on Group 'D' Posts Rules, 2001 (Uttar Pradesh) - the grievance regarding regularization of the service on account of a break in service could not have been taken up in Contempt proceedings, when such issue has attained finality in the High Court. Sanjay Kishan Kaul & Hemant Gupta, JJ. N.K. Janu, Deputy Director Social Forestary Division, Agra v. Lakshmi Chandra, C.A. No. 3740 of 2019 10-04-2019

Succession - On the death of the father and mother, if they died intestate, then under the principles of the Hindu Succession Act, every Class I heir including the daughters, would be entitled to a share in the property left behind by their parents. Uday Umesh Lalit & Indu Malhotra, JJ. Shailndra Kumar Jain v. Maya Prakash Jain, C.A. No. 3587 of 2019 09-04-2019

Tender - Promptness and efficiency levels in private contracts often tend to make the tenders of the public sector a non-competitive exercise. This works to a great disadvantage to the Government and the Public Sector. S.A. Bobde & Sanjay Kishan Kaul, JJ. Caretel Infotech Ltd. v. Hindustan Petroleum Corporation Limited, C.A. No. 3588 of 2019 09-04-2019