Supreme Court Monthly Digest - March 2024

Citations 2024 LiveLaw (SC) 180 to 2024 LiveLaw (SC) 268

Agricultural Produce and Livestock Markets Act, 1966

Agricultural Produce and Livestock Markets Act, 1966 (Andhra Pradesh) – Ghee as a product of livestock – The inclusion of “ghee” as a livestock product cannot be faulted merely because it is not directly obtained from milk, which is a product of livestock, it would still be a “product of a product of livestock”. 'Ghee' is derived out of 'milk' by undergoing a process, yet it still remains a product of livestock, for the purposes of the Act and payment of “market fee”. (Para 10) Sangam Milk Producer Company Ltd. v. Agricultural Market Committee, 2024 LiveLaw (SC) 204

Agricultural Produce and Livestock Markets Act, 1966 (Andhra Pradesh) – Section 3 & 4 – Difference between the notification made under Section 3 of the Act and notification made subsequently under Section 4 of the Act – Notification under Section 3 is a onetime measure where the Government notifies an area where purchase and sale of agricultural produce, livestock and products of livestock can be made. Whereas under Section 4 the Govt. declares the 'notified market area' in respect of any notified product (products which have already been notified under section 3 of the Act). A draft notification and hearing of objections to the draft notification is mandatory under Section 3 but a prior hearing or prior publication of the draft notification is not a requirement under Section 4. The notification in question is a notification under Section 4, hence, no prior process was required to be followed as contemplated under Section 3 of the Act for working the scheme under Section 4 of the Act. Hence, the challenge to the notification has rightly been turned down. (Para 11) Sangam Milk Producer Company Ltd. v. Agricultural Market Committee, 2024 LiveLaw (SC) 204

Agricultural Produce and Livestock Markets Act, 1966 (Andhra Pradesh) –Section 4(3) – Liability to pay market fee – Unjust enrichment – Section 4(3) empowers Market Committees to establish markets within the notified area, also directs that these Market Committees have to provide facilities in the markets for the purchase and sale of notified products. The appellants have availed the facility given by the Market Committee and hence they are liable to pay the fee. (Para 13) Sangam Milk Producer Company Ltd. v. Agricultural Market Committee, 2024 LiveLaw (SC) 204

Agricultural Produce and Livestock Markets Act, 1966 (Andhra Pradesh) – Purpose – To consolidate and amend the laws regulating the purchase and sale of agricultural produce, livestock and products of livestock, along with establishment of markets in connection therewith. The aim was to secure effective and remunerative price of commodities by bringing producers and traders face to face thereby eliminating middlemen and do away with some other earlier unethical trade practices, which were exploiting agriculturists and farmers. (Para 2) Sangam Milk Producer Company Ltd. v. Agricultural Market Committee, 2024 LiveLaw (SC) 204

Anticipatory Bail

Custodial interrogation is one of the effective modes of investigating into the alleged crime. It is equally true that just because custodial interrogation is not required that by itself may also not be a ground to release an accused on anticipatory bail if the offences are of a serious nature. However, a mere assertion on the part of the State while opposing the plea for anticipatory bail that custodial interrogation is required would not be sufficient. The State would have to show or indicate more than prima facie why the custodial interrogation of the accused is required for the purpose of investigation. (Para 12) Ashok Kumar v. State of Union Territory Chandigarh, 2024 LiveLaw (SC) 223

Arbitration and Conciliation Act, 1996

Arbitration and Conciliation Act, 1996; Section 48 – Enforcement of foreign award in India challenged on grounds of arbitral bias – In India, courts must adopt an internationally recognized narrow standard of public policy, when dealing with the aspect of bias. Refusal of enforcement of foreign award should only be in a rare case where, non- adherence to International Standards is clearly demonstrable. Held, cannot infer bias or likelihood of bias of the Presiding Arbitrator, hence there is no violation of the public policy, which would render the foreign award unenforceable in India. The award debtors have failed to substantiate their allegation of bias, conflict of interest or the failure by the Presiding Arbitrator to render disclosure to the parties, as an objection to the enforcement of the award. Courts across the world have applied a higher threshold of bias to prevent enforcement of an Award than the standards set for ordinary judicial review. The award debtors have failed to meet the high threshold for refusal of enforcement of a foreign award under Section 48 of the Indian Arbitration Act. The decision given by the High Court for enforcement/execution of the foreign award stands approved. (Para 22, 25, 36, 42 & 43) Avitel Post Studioz Ltd. v. Hsbc Pi Holdings (Mauritius) Ltd., 2024 LiveLaw (SC) 267

Arbitration and Conciliation Act, 1996; Section 48 – Challenge of Arbitral bias raised at the enforcement stage – Held, challenge of arbitral bias is raised at the enforcement stage, must be discouraged by Courts to send out a clear message that Indian Courts would ensure enforcement of a foreign Award unless it is demonstrable that there is a clear violation of morality and justice. No setting aside challenge based on bias was raised before the Singapore Courts by the appellants within the limitation period. Since the objection of bias was not raised in appropriate proceedings it could not be raised at the post-award Stage. Held, the Award Debtors should have applied for setting aside of the Award before the Singapore Courts at the earliest point of time. (Para 27, 29 & 42) Avitel Post Studioz Ltd. v. Hsbc Pi Holdings (Mauritius) Ltd., 2024 LiveLaw (SC) 267

Arbitration and Conciliation Act 1996; Section 78(5) – Arbitration clause – Two-Contract Case – When the parties enter into a contract, making a general reference to another contract, such general reference would not have the effect of incorporating the arbitration clause from the referred document into the contract between the parties. The arbitration clause from another contract can be incorporated into the contract only by a specific reference to arbitration clause. A reference to the document in the contract should be such that shows the intention to incorporate the arbitration clause from another document into the contract between the parties. The present case is a 'two-contract' case. Clause 7.0 of the L.O.I. which also forms part of the agreement specifically provides that the redressal of the dispute between the NBCC and the respondent shall 'only' be through civil courts having jurisdiction of Delhi alone. When there is a reference in the second contract to the terms and conditions of the first contract, the arbitration clause would not ipso facto be applicable to the second contract unless there is a specific mention/reference thereto. The present case is not a case of 'incorporation' but a case of 'reference' and a general reference would not have the effect of incorporating the arbitration clause. The learned single judge of the Delhi High Court has erred in allowing the appointed the Sole Arbitrator to adjudicate the dispute between the parties. (Para 10, 12, 13, 21 & 23) Nbcc (India) Ltd. v. Zillion Infraprojects Pvt. Ltd., 2024 LiveLaw (SC) 246

The Limitation Act, 1963 is applicable to proceedings for appointment of arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 ("A&C Act"), and a Court may refuse to make a reference if the claims, on the date of commencement of arbitration proceedings, are ex-facie barred. (Para 50) Arif Azim Co. Ltd. v. Aptech Ltd., 2024 LiveLaw (SC) 180

The Parliament should consider bringing an amendment to the Act, 1996 prescribing a specific period of limitation within which a party may move the court for making an application for appointment of arbitrators under Section 11 of the Act, 1996. (Para 94) Arif Azim Co. Ltd. v. Aptech Ltd., 2024 LiveLaw (SC) 180

Bail

An accused, while joining investigation as a condition for remaining enlarged on bail, is not expected to make self-incriminating statements under the threat that the State shall seek withdrawal of such interim protection. Bijender v State of Haryana, 2024 LiveLaw (SC) 209

Bail condition restraining political activities violates fundamental rights, can't be imposed. Siba Shankar Das v. State of Odisha, 2024 LiveLaw (SC) 259

Banking

Rate of Interest on loan amount is a policy decision – The respondent No.1 being a NBFC and as a corporate body would be bound by its policies and procedures with regard to lending and recovery. In that regard, the applicability of the rate of interest to be charged is also a matter of policy and cannot be case-specific unless the individual agreement entered into between the parties indicate otherwise. (Para 10) Rajesh Monga v. Housing Development Finance Corporation Ltd; 2024 LiveLaw (SC) 186

Child Custody

Welfare of the child is of paramount consideration and will override any personal law or statute. The wishes/desire of the child who is capable of forming an opinion has to be considered by the court while deciding any matter of child custody. On interaction by the court with the child, it is found that the child is intelligent and capable of understanding her welfare and wishes to live with the Appellant. The welfare of the child lies with custody of the appellants. (Para 14, 16, 17 & 20) Shazia Aman Khan v. State of Orissa, 2024 LiveLaw (SC) 193

Code of Civil Procedure, 1908

Amendment in pleadings – No evidence could be led beyond pleadings – Specific amendment in the pleadings was sought by the plaintiffs with reference to oral partition but the same was rejected by the trial court. In such a situation, where no further challenge was made to the rejection, the plaint attained finality and evidence with reference to oral partition cannot be considered. The Trial Court had rightly ignored the plea taken in the replication by the plaintiffs regarding oral partition, as amendment sought to that effect had already been declined. What was not permitted to be done directly cannot be permitted to be done indirectly. The High Court committed a grave error in placing reliance upon the partition which was not even the pleaded case. (Para 14, 15 & 16) Srinivas Raghavendrarao Desai v. Kumar Vamanrao @ Alok, 2024 LiveLaw (SC) 194

Order V Rule 25 - Original Side Rules; Order IV - Institution of ordinary suits and service of summons - Service where defendant resides out of India and has no agent - In the present case, the appellant had appeared before the High Court at the stage when leave to sue was sought by the respondent. Leave to sue was granted on 24 January 2020. It was over two years thereafter on 9 March 2022 that an advocate's notice was issued to the appellant. From the advocate's notice, it is evident that the requirement of the High Court OS Rules, which have been noted earlier, were not complied with. The Advocate's notice contained no annexures or documents. It is not evident from the suit number referred to in the notice whether it was the same plaint in respect of which leave to sue had been granted two years earlier. (Para 19) Trois Corporation HK Ltd v. National Ventures Pvt. Ltd., 2024 LiveLaw (SC) 217

Order VIII, Rules 3 & 5 – Specific admission and denial of the pleadings in the plaint – A general or evasive denial is not treated as sufficient. Rule 5 provides that every allegation of fact in the plaint, if not denied in the written statement, shall be taken to be admitted by the defendant. In the written statement filed by the appellants, no specific para-wise reply was given. The failure of the defendant to give a para wise reply against the claim made by the plaintiff would make the allegations made in the plaint as admitted against the defendant. As there is no specific admission or denial with reference to the allegation in different paras, it becomes a roving inquiry for the Court to find out as to which line in some paragraph in the plaint is either admitted or denied in the written statement filed. (Para 15) Thangam v. Navamani Ammal, 2024 LiveLaw (SC) 188

Order IX Rule 13 - The order of the High Court directing a deposit of 75% of the suit claim as a condition precedent for condoning the delay and for setting aside the ex parte decree was unwarranted. The ends of justice would have been met if an order of costs was imposed on the appellant as a condition precedent for condoning the delay and for setting aside the ex parte decree. Imposing a requirement of a deposit of 75% of the suit claim is disproportionate and would have to be set aside. (Para 20) Trois Corporation HK Ltd v. National Ventures Pvt. Ltd., 2024 LiveLaw (SC) 217

Code of Criminal procedure, 1973

Section 82(1) - An accused would not be entitled to pre-arrest bail if the non-bailable warrant and the proclamation under Section 82(1) Cr.P.C. is pending against him. (Para 5) Srikant Upadhyay v. State of Bihar, 2024 LiveLaw (SC) 232

Section 82 and 83 - Mere filing of an anticipatory bail application by the accused could not be treated as his appearance before the court which had initiated proceedings under Section 82/83 Cr.P.C. against the accused. (Para 20) Srikant Upadhyay v. State of Bihar, 2024 LiveLaw (SC) 232

Section 156 (3) - An affidavit is necessary with the application under Section 156 (3) Cr.P.C. - Directions in Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287 are mandatory. Ramesh Kumar Bung v. State of Telangana, 2024 LiveLaw (SC) 213

Section 172 – Diary of proceedings – Every police officer making an investigation under Chapter XII Cr.P.C. is required to enter his proceedings in the investigation in a diary day by day. Sub-section (IA) of Section 172 requires that the statements of the witnesses recorded during the course of investigation under section 161 have to be inserted in the case diary; and sub-section (1B) of Section 172 requires that such diary shall be a volume and duly paginated. (Para 11) Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Section 173 – Power of Magistrate to act on Police report – When such a Police Report concludes that an offence appears to have been committed by a particular person or persons, the Magistrate has three options: (i) he may accept the report and take cognizance of the offence and issue process, (ii) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report, or (iii) he may disagree with the report and discharge the accused or drop the proceedings. If such Police Report concludes that no offence appears to have been committed, the Magistrate again has three options: (i) he may accept the report and drop the proceedings, or (ii) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process, or (iii) he may direct further investigation to be made by the police under sub-section (3) of Section 156. (Para 14) Bhagwant Singh vs. Commissioner of Police & Anr; (1985) 2 SCC 537; referred. Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Section 173 – Police report – It is an opinion or intimation of the investigating officer to the concerned court that on the material collected during the course of investigation, an offence appears to have been committed by the particular person or persons, or that no offence appears to have been committed. (Para 13) Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Section 173(2) – Mandatory requirements of police report – It is found that the investigating officers while submitting the chargesheet/Police Report do not comply with the requirements of the Section 173(2). Though the form of the report to be submitted under Section 173(2) has to be prescribed by the State Government and each State Government has its own Police Manual, the mandatory requirements required to be complied with by such officers in the Police Report/Chargesheet are laid down in Section 173. It is incumbent on the part of the Investigating Officer to strictly comply with the requirements of Section 173(2). Only the report forwarded by the police officer to the Magistrate under Section 173(2). can form the basis for the competent court for taking cognizance thereupon. A chargesheet is nothing but a final report of the police officer under Section 173(2) of. (Para 12 & 13) Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Section 173(2) – Directions issued and particulars listed for compliance in a police report on completion of investigation – Report of police officer on the completion of investigation shall contain (i) A report in the form prescribed by the State Government stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170 Cr.PC. (h) Whether the report of medical examination of the woman has been attached where investigation relates to an offence under [sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB] or section 376E of the IPC. (ii) If upon the completion of investigation, there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, the Police officer in charge shall clearly state in the Report about the compliance of Section 169 Cr.PC. (iii) When the report in respect of a case to which Section 170 Cr.PC. applies, the police officer shall forward to the Magistrate along with the report, all the documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; and the statements recorded under Section 161 Cr.PC. of all the persons whom the prosecution proposes to examine as its witnesses. (iv) In case of further investigation, the Police officer in charge shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and shall also comply with the details mentioned in the above sub para (i) to (iii). (Para 17) Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Section 173(2) – Right to default bail on grounds of incomplete police report – Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C. (Para 15) CBI vs. Kapil Wadhwan & Anr, Criminal Appeal No. 391 of 2024 (@ SLP (Crl) No. 11775 of 2023); referred. Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Section 242(3) and Indian Evidence Act, 1872; Section 138 – The general rule is that witnesses shall be examined in the order laid down in Section 138 of the Indian Evidence Act, 1872. An exception to this rule is Section 242(3) Code of Criminal Procedure, 1973 under which, in a warrant case, the learned Magistrate, by recording reasons, can permit cross-examination of a witness to be postponed till a particular witness or witnesses are examined. Held, recording only the examination-in-chief of 12 prosecution witnesses without recording cross-examination is contrary to the law. (Para 6 & 7) Ekene Godwin v. State of Tamil Nadu, 2024 LiveLaw (SC) 261

Section 319 – Discretionary powers of High Court –The materials on record could not be said to have satisfied the threshold envisaged under Hardeep Singh v State of Punjab & Ors., i.e., more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. The High Court failed to appreciate that the discretionary powers under Section 319 of the CrPC ought to have been used sparingly where circumstances of the case so warrant. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Code of Criminal Procedure. Only where strong and cogent evidence occurs against a person from the evidence laid before the court that such power should be exercised and not in a casual and cavalier manner. (Para 7 & 10) N. Manogar v. Inspector of Police, 2024 LiveLaw (SC) 196

Section 319 - High Court overturned the Trial Court Order; and accordingly impleaded the Appellants' as accused person(s) in the Underlying Proceedings on the satisfaction of a prima-facie finding that the materials on record i.e., (i) vague allegations emanating from the underlying complaint; (ii) the Complainant's statement under Section 161 of the CrPC; and (iii) the Complainant's examination-in-chief, are sufficient to proceed against the Appellant(s). Held, the High Court failed to appreciate that the discretionary powers under Section 319 of the CrPC ought to have been used sparingly where circumstances of the case so warrant. The Trial Court Order was well reasoned and did not suffer from any perversity. Moreover, the materials on record could not be said to have satisfied the threshold i.e., more than a prima facie case, as exercised at the time of framing of charge but short of evidence that if left unrebutted would lead to conviction. (Para 9 & 10) N. Manogar v. Inspector of Police, 2024 LiveLaw (SC) 196

Section 438 – Pre-arrest/Anticipatory Bail – Grant of pre-arrest bail to a police officer facing allegations of manipulating the investigation so as to favour an accused would send out a wrong signal in society and would be against public interest. Presumptions and other considerations applicable to a layperson facing criminal charges may not carry the same weight while dealing with a police officer who is alleged to have abused his office. Considering the position held by the respondent, even if he was suspended from service, the possibility of his tampering with the witnesses and the evidence was sufficiently high. Bail order is liable to be set aside. (Para 9 & 10) State of Jharkhand v. Sandeep Kumar, 2024 LiveLaw (SC) 205

Section 438 – Pre-arrest/Anticipatory Bail – Court must record reasons for grant of Bail – An order of bail, bereft of any cogent reason, could not be sustained. Though grant of bail is discretionary, it calls for exercise of such discretion in a judicious manner and not as a matter of course. The High Court did not deem it necessary to record as to what weighed with it while granting pre-arrest bail to the respondent, hence, bail order is set aside. (Para 5, 6 & 7) State of Jharkhand v. Sandeep Kumar, 2024 LiveLaw (SC) 205

Section 438 – Bail / Anticipatory Bail – Considerations by Court while dealing with a bail petition – Similar considerations would apply even for grant of anticipatory bail – The nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors relevant in the facts and circumstances of the case. (Para 7) State of Jharkhand v. Sandeep Kumar, 2024 LiveLaw (SC) 205

Section 482 and Constitution of India; Article 226 – Exercise of extraordinary power to quash proceedings – Such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. Some instances where such power can be exercised is: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Held, present case would squarely fall under categories (1), (3) and (5) and even if the allegations made in the FIR and the material on which the prosecution relies, are taken at its face value, there are no sufficient grounds for proceeding against the accused. (Para 17 & 18) Ms. X v. Mr. A, 2024 LiveLaw (SC) 242

Section 482 - Quashing of FIR – The entire case of prosecution is based on unauthorizedly and illegally collected sample of meat. Hence, the High Court was right when it interfered by quashing the First Information Report. (Para 9) Joshine Antony v. Asifa Sultana, 2024 LiveLaw (SC) 195

Section 482 - Quashing of FIR – Law with regard to exercise of jurisdiction under Section 482 of Cr.P.C. to quash complaints and criminal proceedings - Discussed. (Para 9, 10 & 21) A.M. Mohan v. State, 2024 LiveLaw (SC) 197

Section 482 - Quashing of FIR – Offence of Rape - A relationship may be consensual at the beginning but the same state may not remain so for all time to come. Whenever one of the partners show their unwillingness to continue with such relationship, the character of such relationship at it was when started will not continue to prevail. In the instant case, we do not think the relationship had remained consensual to justify quashing of the criminal complaint at the threshold. Rajkumar v. State of Karnataka, 2024 LiveLaw (SC) 214

Section 482 – Inherent power of court – High Court should have exercised power under Section 482 to stop the abuse of the process and to secure the ends of justice. Although the inherent powers of a High Court under Section 482 of the Code of Criminal Procedure should be exercised sparingly, yet the High Court must not hesitate in quashing such criminal proceedings which are essentially of a civil nature but are given a cloak of criminal offence. Criminal proceedings cannot be taken recourse to as a weapon of harassment. (Para 5 & 6) Paramjeet Batra v. State of Uttarakhand, (2013) 11 SCC 673; Usha Chakraborty & Anr. v. State of West Bengal & Anr. 2023 SCC OnLine SC 90; referred. Naresh Kumar v. State of Karnataka, 2024 LiveLaw (SC) 228

Compensatory Jurisprudence

Compensatory jurisprudence – Case of wrong medical diagnosis causing premature discharge from service –In case of premature discharge from service of armed forces, extreme caution and care in ensuring correct diagnoses was required. The Armed Forces Tribunal (AFT) failed to observe that there is no medical literature to show that the appellant was suffering from AIDS defining illness. In spite of being aware of the adverse and pernicious impact on the appellant, respondents acted grossly careless and negligent. The appellant had submitted four diagnostic reports, showing that his CD4 cell count was above 300 cells/mm3, as opposed to the respondents' 2003 Guidelines defining an AIDS illness to be one where the CD4 cell count is below 200 cells/mm3. The Medical Board, arbitrarily, wrongly and rejected the appellant's prayer on flimsy and wrong grounds by applying the 1992 Guidelines. Held, the appellant's reinstatement in service is not an available option now and also that direction for grant of pension, cannot be considered an equitable restitution of what the appellant has suffered by reason of psychological, financial and physical trauma, hence monetary compensation on account of wrongful termination of services is awarded to the appellant. (Para 6, 7, 8, 9 & 23) Satyanand Singh v. Union of India, 2024 LiveLaw (SC) 247

Constitution of India

Article 14 – Exemption of certain projects or activities from mandatory obtaining environment clearance – Unguided and blanket exemption, is, per se, arbitrary and violative of Article 14 of the Constitution of India – Item 6 grants exemption from the requirement of obtaining EC for “extraction or sourcing or borrowing of ordinary earth for linear projects, such as roads, pipelines, etc. Held, when an exception is sought to the requirement of obtaining EC, the exception must be specific. There is no specification about the quantum of ordinary earth, which can be extracted or the area which can be used to extract ordinary earth. “Linear projects” have not been defined making the term “linear projects” very vague. Even the amended item 6 continues to suffer from the same vice of arbitrariness, which Article 14 of the Constitution of India prohibits. The exemption granted without incorporating any safeguards is completely unguided and arbitrary and such blanket exemption completely defeats the very object of the EP Act. Hence, on account of the violation of Article 14, item 6 in the impugned notification, as well as the amended impugned notification, is struck down. (Para 25, 26 & 27) Noble M. Paikada v. Union of India, 2024 LiveLaw (SC) 252

Article 19(1) (a) & 21– Right to dissent – The right to dissent in a legitimate and lawful manner is an integral part of the rights guaranteed under Article 19(1) (a) and every individual must respect the right of others to dissent. An opportunity to peacefully protest against the decisions of the Government is an essential part of democracy. The right to dissent in a lawful manner must be treated as a part of the right to lead a dignified and meaningful life guaranteed by Article 21, but the protest or dissent must be subject to reasonable restrictions imposed in accordance with Article 19(2). Further, the police machinery must be enlightened on the concept of freedom of speech and expression guaranteed by Article 19(1) (a) of the Constitution and the extent of reasonable restraint on this freedom. The police machinery must be sensitised about the democratic values enshrined in our Constitution. (Para 10 & 13) Javed Ahmad Hajam v. State of Maharashtra, 2024 LiveLaw (SC) 208

Article 20(1) – Article 20(1) does not prohibit this Court, to award a lesser punishment in a befitting case, when this Court is of the opinion that a lesser punishment may be awarded since the new law on the penal provision provides a lesser punishment i.e. lesser than what was actually applicable at the relevant time. The prohibition contained in Article 20 of the Constitution of India is on subjecting a person to a higher punishment than which was applicable for that crime at the time of the commission of the crime. There is no prohibition for this Court to impose a lesser punishment which is now applicable for the same crime. (Para 8) A.K. Sarkar v. State of West Bengal, 2024 LiveLaw (SC) 212

Article 22(4) and Act, 1986; Section 9, 10, 11 & 12 - Advisory Board - Article 22(4) mandates that, any law pertaining to preventive detention must provide for constitution of an Advisory Board consisting of persons who have been or qualified to be appointed as judges of the High Court. It further vests the Advisory Board with the pivotal role of reviewing an order of detention within three-months by forming an opinion as to whether there is a sufficient cause for such detention or not, after consideration of all the material on record including representation if any, of the detenu. Under preventive detention legislations, Advisory Boards(s) are constitutional safeguards available to the detenu against an order of detention. Under the Act, 1986, Section 9 gives expression to this constitutional requirement, and provides for the constitution and composition of an Advisory Board for the purposes of the Act. Under section 10, any order of detention that has been made under the Act shall be placed before an Advisory Board thereunder within three-weeks from the date of its passing. As per Section 11, the Advisory Board must form an opinion and specify as to whether there is sufficient cause warranting the detention of the detenu. (Para 50, 52 & 53) Nenavath Bujji v. State of Telangana, 2024 LiveLaw (SC) 253

Article 32 – Quashing the order of detention – The Court does not sit in judgment over the correctness of the subjective satisfaction but may ascertain whether the subjective satisfaction is based on objective facts or influenced by any caprice, malice or irrelevant considerations or non-application of mind. (Para 43) Nenavath Bujji v. State of Telangana, 2024 LiveLaw (SC) 253

Article 32 – Writ of Habeas Corpus – 'Habeas Corpus' literally means 'have his body'. This is a prerogative process for securing the liberty of the subject by affording an effective relief of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. It is the duty of the Court to issue this writ to safeguard the freedom of the citizen against arbitrary and illegal detention. By the writ of habeas corpus, the Court can cause any person who is imprisoned to be brought before the Court and obtain knowledge of the reason why he is imprisoned and then either set him free then and there if there is no legal justification for the imprisonment, or see that he is brought speedily to trial. The writ may be addressed to any person whatsoever an official or a private individual who has another in his custody. (Para 29 & 30) Nenavath Bujji v. State of Telangana, 2024 LiveLaw (SC) 253

Article 136 – Interference under Article 136 is not warranted – The Supreme Court may exercise its power under Article 136 sparingly and only when exceptional circumstances exist which justify the exercise of its discretion. The court is not inclined under Article 136 of the Constitution to re-appreciate the findings of facts which have been arrived at by the High Court. The order of the High Court does not suffer from any error that would warrant the invocation of jurisdiction under Article 136. (Para 18 & 23) Vedanta Ltd. v. State of Tamil Nadu, 2024 LiveLaw (SC) 211

Article 136 – Jurisdiction of Supreme Court – Discretion to interfere – In cases where there is no substantial question of law this court would not exercise its discretion. (Para 18) Mahanadi Coalfields Ltd. v. Brajrajnagar Coal Mines Workers' Union, 2024 LiveLaw (SC) 230

Article 136 – Power to interfere in acquittal passed by High Court – Once the appellate court acquits the accused, the presumption of innocence as it existed before conviction by the Trial Court, stands restored. Court, while scrutinizing the evidence, will proceed with great circumspect and will not routinely interfere with an order of acquittal, save when the impeccable prosecution evidence nails the accused beyond any doubt. An intervention is warranted when the High Court's approach or reasoning is deemed perverse or when based on suspicion and surmises court rejects evidence or when the acquittal is primarily rooted in an exaggerated adherence to the rule of giving the benefit of doubt in favour of the accused. Further circumstance for intervention arises when the acquittal would lead to a significant miscarriage of justice. An erroneous or perverse approach to the proven facts of a case and/or ignorance of some of the vital circumstances would amount to a grave and substantial miscarriage of justice. Supreme Court will be justified in exercising its extraordinary jurisdiction to undo the injustice mete out to the victims of a crime. (Para 15, 17 & 18) Rajesh Prasad v. State of Bihar,, (2022) 3 SCC 471; referred. State of Punjab v. Gurpreet Singh, 2024 LiveLaw (SC) 218

Article 136 – Wrongful denial of employment and regularization – Distinction between the two sets of workers – Artificial distinction asserted by appellant between two set of workers is unjustified. The appellant has failed to establish any distinction between the 19 workers who were regularized and the 13 workers who were left out. The tribunal came to the conclusion that the nature of the duties performed by the 13 workmen are perennial in nature and they hold the same status as the 19 regularized employees but were wrongly not made part of the settlement. There is no merit in the appeals filed by the appellant. (Para 20, 21 & 22) Mahanadi Coalfields Ltd. v. Brajrajnagar Coal Mines Workers' Union, 2024 LiveLaw (SC) 230

Article 226 and Criminal procedure Code, 1973; Section 482 – Categories of cases wherein quashing power could be exercised to prevent abuse of the process of any court or to secure the ends of justice are: (1) Where the allegations made in the first information report or the complaint, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence. (5) Where the allegations made in the FIR or complaint are absurd and inherently improbable to reach a conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar to the institution and continuance of the proceedings and/or where there is provision providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is mala fide. (Para 32) Shiv Prasad Semwal v. State of Uttarakhand, 2024 LiveLaw (SC) 251

Article 226 – Error of jurisdiction of High Court – The petitioner had expressly consented to the High Court to evaluate the entirety of the matter in its full perspective. As the petitioner has agreed to the evaluative action by the High Court, it cannot be concluded that the High Court has committed an error of jurisdiction. (Para 16 & 17) Vedanta Ltd. v. State of Tamil Nadu, 2024 LiveLaw (SC) 211

Article 226 – Jurisdiction to interfere in administrative decisions – The judiciary must exercise restraint and avoid unnecessary intervention qua administrative decision(s) of the executive involving specialised expertise in the absence of any mala-fide and / or prejudice. The process of evaluation of an IAS officer, ought to have been left to the executive on account of it possessing the requisite expertise and mandate for the said task. The High Court entered into a specialised domain i.e., evaluating the competency of an IAS officer without the requisite domain expertise and administrative experience to conduct such an evaluation. The High Court ought not to have ventured into the said domain particularly when the Accepting Authority is yet to pronounce its decision qua the Underlying Representation. (Para 25, 27 & 28) State of Haryana v. Ashok Khemka, 2024 LiveLaw (SC) 220

Guidelines issued to secure the fundamental rights and dignity of intimate partners, and members of the LGBTQ+ communities in illegal detention – Mandatory in nature – Habeas corpus petitions and petitions for protection must be given a priority in hearing and courts must avoid adjournments or delays in the disposal of the case; In evaluating the locus standi of a partner or friend, the court must not make a roving enquiry into the precise nature of the relationship between the appellant and the person; Effort must be to create an environment conducive for a free and un-coerced dialogue to ascertain the wishes of the corpus; The court must ensure that the corpus is produced before the court and given the opportunity to interact with the judges in-person in chambers to ensure the privacy and safety of the detained or missing person; The court must ensure that the wishes of the detained person is not unduly influenced by the Court, or the police, or the natal family during the course of the proceedings; Upon securing the environment and inviting the detained or missing person in chambers, the court must make active efforts to put the detained or missing person at ease; If a detained or missing person expresses their wish to not go back to the alleged detainer or the natal family, then the person must be released immediately without any further delay; Courts must grant an ad-interim protection while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple to maintain their privacy and dignity; The Court must not adopt counselling or parental care as a means of changing the mind of the appellant, or the detained/missing person; The Judge during the interaction with the corpus to ascertain their views must not attempt to change or influence the admission of the sexual orientation or gender identity of the appellant or the corpus and Sexual orientation and gender identity fall in a core zone of privacy of an individual and no stigma or moral judgment must be imposed when dealing with cases involving parties from the LGBTQ+ community. (Para 16 & 17) Devu G. Nair v. State of Kerala, 2024 LiveLaw (SC) 249

Parliamentary processes not taking place on the floor of the house are also covered by parliamentary privilege. Sita Soren v. Union of India, 2024 LiveLaw (SC) 185

Quashing of proceedings – Held, tested on the touchstone of the principles stated in State of Haryana and Ors. v. Bhajan Lal and Ors., allowing continuance of the proceedings pursuant to the impugned FIR is gross abuse of process of law because the allegations as set out in the FIR do not disclose necessary ingredients of any cognizable offence. Hence, the impugned FIR and all proceedings sought to be taken against the appellant are quashed and set aside. (Para 33) Shiv Prasad Semwal v. State of Uttarakhand, 2024 LiveLaw (SC) 251

Rajya Sabha's role is part of basic structure - Rajya Sabha elections protected by legislative privileges under Article 194. Sita Soren v. Union of India, 2024 LiveLaw (SC) 185

Right to legal aid – When the examination-in-chief of a prosecution witness is being recorded, the presence of the Advocate for the accused is required, as the advocate has a right to object to a leading or irrelevant question being asked to the witness. The report of trial court records that the evidence of prosecution witnesses was recorded in the presence of the appellants, but their Advocate was not present as they had not engaged any Advocate. Held, after finding that the appellants-accused had not engaged any Advocate, the Trial Court ought to have provided a legal aid Advocate to the appellants accused so that the evidence of the prosecution witnesses could have been recorded in the presence of the Advocate representing the appellants-accused. Recording of evidence in this fashion is not justified even if the High Court had fixed a time-bound schedule for disposal of the case. The trial court could have always sought an extension of time from the High Court. (Para 5 & 6) Ekene Godwin v. State of Tamil Nadu, 2024 LiveLaw (SC) 261

Scope of judicial review in matters of transfer – The scope of judicial review is only available when there is a clear violation of statutory provision or the transfer is persuaded by malafide. In absence of (i) pleadings regarding malafide, (ii) non-joining the person against whom allegation are made, (iii) violation of any statutory provision (iv) the allegation of the transfer being detrimental to the employee who is holding a transferrable post, judicial interference is not warranted. The impugned transfer order is not alleged to be malafide or violative of any prescribed statutory provision, hence, the interference made by the Division Bench setting aside the well-reasoned judgment of the Single Judge is not justified. The Division Bench has committed an error in setting aside the judgment of the learned Single Judge. (Para 12 & 13) Pubi Lombi v. State of Arunachal Pradesh, 2024 LiveLaw (SC) 231

Writ petition – Lack of proper procedure – The writ petition filed claiming title on the disputed plot of land was taken up by the High Court in hot haste and was allowed without issuing formal notice to all the respondents. Further, the State authorities were not given proper opportunity of filing a counter and the standing counsel was instructed to appear without any formal notice being issued and was given a single day's opportunity to present the factual report. Impugned order passed by the High Court suffers from patent illegality, perversity and in sheer violation of principles of natural justice. (Para 16 & 18) Suneeta Devi v. Avinash, 2024 LiveLaw (SC) 226

Writ petition – Writ petition was manifestly tainted on account of concealment of material facts. Factum of filing of two earlier writ petitions with similar prayers was concealed by respondent while filing the present writ petition. (Para 14 & 16) Suneeta Devi v. Avinash, 2024 LiveLaw (SC) 226

Consumer Law

Consumer Protection Act, 1986; Section 2(1) (m) and Consumer Protection Act, 2019 – Maintainability of the complaint filed by Insured Company (registered under the Companies Act, 1956) before the National Consumer Disputes Redressal Commission is in question – Whether 'company' is covered by the definition of 'person' under the Consumer Protection Act, 1986? – Held, the definition of 'person' as provided in the Act of 1986 is inclusive and not exhaustive. Consumer Protection Act being a beneficial legislation, a liberal interpretation has to be given to the statute. The very fact that in the Consumer Protection Act, 2019, a body corporate has been brought within the definition of 'person', by itself indicates that the legislature realized the incongruity in the unamended provision and has rectified the anomaly by including the word 'company' in the definition of 'person'. (Para 15) Kozyflex Mattresses Pvt. Ltd. v. SBI General Insurance Company Ltd., 2024 LiveLaw (SC) 255

Contempt of Court

Maintainability of contempt petition – Even consent terms incorporated in the Court's order when breached would give rise to allegations of contempt, but by mere filing of a civil suit asserting certain legal rights over the lands in question, it cannot be stated that the plaintiffs have breached the consent terms. Filing of the suit for asserting the rights of the plaintiffs/respondents could not be said to be amounting to contempt of the Court. Hence, no interference is warranted in the impugned order. (Para 10 & 25) Shah Enterprises v. Vaijayantiben Ranjitsingh Sawant, 2024 LiveLaw (SC) 224

Substantially the same cause of action – The cause of action for filing the Contempt Petition and the alleged cause of action for filing the complaint case was substantially the same. Taking cognizance in a substantially same complaint case, after the dismissal of the Contempt Petition by a detailed order is an abuse of the process of law. The first respondent did not challenge the dismissal of the Contempt Petition and came up with a complaint case. Further, though the Contempt Petition was already filed in 2016, the said fact has not been mentioned in the complaint filed by the first respondent in the year 2017. Hence, prosecution of the complaint was itself an abuse of the process of law and ought to be quashed. (Para 9 & 10) Murari Lal Chhari v. Munishwar Singh Tomar, 2024 LiveLaw (SC) 192

Contract Act, 1872

Novation – As it was not open to one of the parties, to unilaterally change the agreed terms and conditions, there was no novation in contract. Mere exchange of correspondence between the parties prior to expiry of the grace period, cannot be held against them by treating it as an act in acceptance of or acquiescence with the change impliedly suggested by the respondent-company. Hence, the action of the appellants in terminating the Agreement immediately after expiry of the grace period, by getting a legal notice issued, cannot be found fault with. (Para 19) Venkataraman Krishnamurthy v. Lodha Crown Buildmart Pvt. Ltd., 2024 LiveLaw (SC) 184

Once the parties committed themselves to a written contract, whereby they reduced the terms and conditions agreed upon by them to writing, the same would be binding upon them. The National Consumer Disputes Redressal Commission (NCDRC) cannot rewrite the terms and conditions of the contract between the parties and apply its own subjective criteria to determine the course of action to be adopted by either of them. The right of election of the appellants to either continue or to terminate the Agreement within ninety days from the expiry of the grace period was absolute and it was not open to the NCDRC to apply its own standards. The NCDRC overstepped its power and jurisdiction in ignoring the binding covenants in the Agreement and in introducing its own logic and rationale to decide as to what the future course of action of the parties. (Para 15 & 22) Venkataraman Krishnamurthy v. Lodha Crown Buildmart Pvt. Ltd., 2024 LiveLaw (SC) 184

Pre-contractual correspondence – As per English jurisprudence, pre-contractual correspondence loses its significance once the contract comes into existence. When the parties have signed the agreement, the terms agreed therein would bind the parties and the email exchanged between the parties prior to the agreement, cannot override the policy decisions. In order to contend that the appellant has been misled, the appellant ought to have raised such contention when the agreement was to be signed. Further, the appellant having repaid the loan amount with interest as per the terms of agreement cannot make out a grievance in hindsight and seek refund of the amount paid. No error has been committed so as to call for interference. (Para 13 & 14) Rajesh Monga v. Housing Development Finance Corporation Ltd; 2024 LiveLaw (SC) 186

Sections 37 and 40 - In the case of a personal obligation imposed on a person under the contract and on the demise of such person, his estate does not become liable and therefore, the legal representatives who represent the estate of a deceased would obviously not be liable and cannot be directed to discharge the contractual obligations of the deceased. (Para 27) Vinayak Purushottam Dube v. Jayashree Padamkar Bhat, 2024 LiveLaw (SC) 181

Convention on Biological Diversity, 1992

Article 8 – Principle of Ecological Restitution – Article 8(f) requires the contracting parties to, as far as possible and as appropriate, to rehabilitate and restore the degraded ecosystems and promote the recovery of threatened species. The focus has to be on restoration of the ecosystem as close and similar as possible to the specific one that was damaged. The State, apart from preventing such acts in the future, should take immediate steps for restoration of the damage already done; undertake an exercise for determining the valuation of the damage done and recover it from the persons found responsible for causing such a damage. (Para 150, 156 & 158) In Re: T.N. Godavarman Thirumulpad v. Union of India, 2024 LiveLaw (SC) 198

Corruption

Bribery not protected by legislative privileges - No immunity for MPs / MLAs taking bribes for vote/speech in legislature. Sita Soren v. Union of India, 2024 LiveLaw (SC) 185

Corruption and bribery of members of the legislature erode the foundation of Indian parliamentary democracy. It is disruptive of the aspirations and deliberative ideals of the Constitution and creates a polity which deprives citizens of a responsible, responsive, and representative democracy. (Para 104) Sita Soren v. Union of India, 2024 LiveLaw (SC) 185

Offence of bribery not dependent on actual performance of act for which bribe is taken, mere acceptance of bribe enough. Sita Soren v. Union of India, 2024 LiveLaw (SC) 185

The offence of bribery is complete the moment illegal gratification is accepted and is not dependent on the actual performance of the promise for which the bribe was sought. Offence is complete one mere acceptance of undue advantage. Sita Soren v. Union of India, 2024 LiveLaw (SC) 185

Cow Slaughter

Prevention of Cow Slaughter and Cattle Preservation Act, 1964 (Karnataka); Section 10 – Power of competent authority to enter and inspect – The power of the authorized person was confined to enter and inspect. As per the provisions, the assistant director had no power to seize any sample of meat. (Para 9) Joshine Antony v. Asifa Sultana, 2024 LiveLaw (SC) 195

Criminal Law

Appropriate sentence – Principle of proportionality – The aggravating and mitigating circumstances which the Court considers while deciding commutation of penalty from death to life imprisonment, have a large bearing in deciding the number of years of compulsory imprisonment without remission, too. In the process of arriving at the number of years which the convict will have to undergo before which the remission powers could be invoked, some of the relevant factors that the courts bear in mind are:- (a) the number of deceased who are victims of that crime and their age and gender; (b) the nature of injuries including sexual assault if any; (c) the motive for which the offence was committed; (d) whether the offence was committed when the convict was on bail in another case; (e) the premeditated nature of the offence; (f) the relationship between the offender and the victim; (g) the abuse of trust if any; (h) the criminal antecedents; and whether the convict, if released, would be a menace to the society. Some of the positive factors have been, (1) age of the convict; (2) the probability of reformation of convict; (3) the convict not being a professional killer; (4) the socioeconomic condition of the accused; (5) the composition of the family of the accused and (6) conduct expressing remorse. The Court would be additionally justified in considering the conduct of the convict in jail; and the period already undergone to arrive at the number of years which the Court feels the convict should, serve as part of the sentence of life imprisonment and before which he cannot apply for remission. These are not exhaustive but illustrative and each case would depend on the facts and circumstances therein. No interference required for sentence of offences under Section 449 and Section 309. However, sentence under Section 302 is modified from 30 years imprisonment without remission to 25 years imprisonment without remission. (Para 57) Navas @ Mulanavas v. State of Kerala, 2024 LiveLaw (SC) 248

Framing of charge – Even a strong suspicion founded on material on record which is ground for presuming the existence of factual ingredients of an offence would justify the framing of charge against an accused person. (Para 43) Puneet Sabharwal v. CBI, 2024 LiveLaw (SC) 260

Quashing of Charge – Appellants have not made out a case for interference with the order on charge and the order of framing charge. The Court is only required to consider judicially whether the material warrants the framing of charge without blindly accepting the decision of the prosecution. (Para 43) Puneet Sabharwal v. CBI, 2024 LiveLaw (SC) 260

Power of constitutional courts to transfer case to CBI – The powers of the Supreme Court for directing further investigation regardless of the stage of investigation are extremely wide. This can be done even if the chargesheet has been submitted by the prosecuting agency. Held, unresolved crimes tend to erode public trust in institutions which have been established for maintaining law and order. In the present case the investigation has been ineffective is self-evident. Hence, this case needs to be handed over to CBI, for a proper investigation and also to remove any doubts in the minds of the appellants, and to bring the real culprits to justice. Case shall be transferred from SIT to the CBI. (Para 14 & 16) Awungshi Chirmayo v. Government of NCT of Delhi, 2024 LiveLaw (SC) 263

Standard of proof – Beyond reasonable doubt – Various lapses cumulatively affect the overall sanctity of the prosecution case, making it fall short of the threshold of beyond reasonable doubt. The prosecution case stands shaken beyond a point to which no conviction resting thereupon can be said to be just in the eyes of law. (Para 47) Periyasamy v. State, 2024 LiveLaw (SC) 244

Custodial Death

It is a fact that, in ordinary circumstances, we ought not to invoke our jurisdiction under Article 136 of the Constitution of India to invalidate an order granting bail to an accused. But this criteria, while dealing with the question of granting bail, would not apply in a case of custodial death, where police officials are arraigned as accused. Such alleged offences are of grave and serious nature. Ajay Kumar Yadav v. State of Uttar Pradesh, 2024 LiveLaw (SC) 266

Customs Act, 1962

Appeal – The transaction value in the bills of entry of the subsequent goods can be discarded if it is found that the importer has earlier brought/imported an identical goods or similar goods at a higher price from the same seller/exporter. Whether the previously imported goods identical or similar to the subsequently imported goods? – The court disbelieved the statement made by the appellant that the two goods aren't identical/similar to each other due to a little difference in the hardware and software functions in the disputed goods as compared to the earlier versions. In the order-in-original and in the impugned judgment of CESTAT on facts, it was found that Item nos. 1 and 3 were identical goods, and Item no. 2 was of similar goods. Detailed reasons have been recorded in the order-inoriginal as to why the transaction value of the imported goods has been discarded. Hence, there no error in the findings recorded by the CESTAT. (Para 8, 9 & 10) Global Technologies and Research v. Principal Commissioner of Customs, 2024 LiveLaw (SC) 239

The Importer's Bill of Entry of subsequent imported goods can be discarded if the subsequent imported goods are undervalued to the previously imported identical or similar goods. (Para 8 - 10) Global Technologies and Research v. Principal Commissioner of Customs, 2024 LiveLaw (SC) 239

Section 28AB, 71 & 72 – Applicability of custom duty – In 264 cases which were never placed inside the notified public bonded warehouse, custom duty is no applicable. Since the imported goods (264 cases) were never warehoused inside the notified public bonded warehouse but were unloaded outside the notified area but within the factory premises of the appellant and kept under a shed on permission granted by the Superintendent which permission was neither cancelled nor revoked, question of warehousing the goods covered by the 264 cases within the notified public bonded warehouse did not arise. As a corollary, the further question of improperly or unauthorisedly removing the 264 cases from the notified warehouse to outside the said area but within the factory premises of the appellant attracting Section 71 and the consequences following the same did not arise. Held, the demand raised by the respondent against the appellant as affirmed by the CESTAT qua the 264 cases including levy of customs duty and interest (under section 71 & 28AB) cannot be sustained. (Para 53, 58) Bisco v. Commissioner of Customs and Central Excise, 2024 LiveLaw (SC) 257

Section 28AB, 71 & 72 – Applicability of custom duty – In respect of the missing 27 cases which were found neither inside nor outside the notified warehouse and for which no explanation was given by the Appellant, the CESTAT had correctly held that those 27 cases were improperly or unauthorisedly removed from the notified public bonded warehouse. The demand of customs duty and interest (under section 71 & 28AB) on the 27 cases has been sustained. (Para 54, 58) Bisco v. Commissioner of Customs and Central Excise, 2024 LiveLaw (SC) 257

Section 129A(2) – Limitation – Powers of the Committee of Commissioners of Customs – If the said Committee is of the opinion that an order passed by the Appellate Commissioner of Customs or Commissioner of Customs (Appeals) under Section 128 or 128A of the Customs Act is not legal and proper, it can direct the appropriate officer to file an appeal before the CESTAT and there is no prescribed period of limitation for passing such an order but the authority must take action within a reasonable time. The review order passed after 10 months was held to be reasonable time considering the extraordinary circumstances prevailing in those days due to COVID-19. (Para 7) Global Technologies and Research v. Principal Commissioner of Customs, 2024 LiveLaw (SC) 239

Dispute

Nature of dispute – Dispute between the parties was essentially of a civil nature – There is no criminal element and consequently the case is nothing but an abuse of the process. The complainant has not been able to establish that the appellants had intention to cheat right from the beginning. Essentially, the present dispute between the parties relates to a breach of contract. A mere breach of contract, by one of the parties, would not attract prosecution for criminal offence in every case. Every breach of contract would not give rise to the offence of cheating, and it is required to be shown that the accused had fraudulent or dishonest intention at the time of making the promise. (Para 4, 7, 8) Vesa Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC 293; referred. Naresh Kumar v. State of Karnataka, 2024 LiveLaw (SC) 228

Settlement of dispute between parties – The additional amount paid by the appellants pursuant to a settlement is primarily to bring a quietus to the dispute and to have peace and to avoid litigation. The mere fact that the appellants have paid an additional amount pursuant to the settlement, cannot be presumed as an act of cheating. The allegation that the complainant was coerced into a settlement, looks unlikely because there is no FIR or Complaint that the complainant was coerced into this settlement and the amount was duly accepted by the complainant. Further the complainant does not dispute that the additional amount paid by the appellants under the terms of the compromise deed. Hence, the dispute is settled. (Para 4) Naresh Kumar v. State of Karnataka, 2024 LiveLaw (SC) 228

Drugs and Cosmetics Act, 1940

Proceedings under the Act initiated on the basis of the complaint of the Police Inspector is legally invalid. Accordingly, the cognizance order is found to be unjustified and is set aside. (Para 9) Rakesh Kumar v. State of Bihar, 2024 LiveLaw (SC) 264

Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954

Rules, 1955; Section 3 (d) - Contempt of Court Proceedings – Violation of Undertaking – The Court restrained Patanjali Ayurved Limited from advertising products intended to cure diseases specified in relevant laws and cautioned against making statements against any system of medicine in the media, as previously undertaken. Indian Medical Association v. Union of India, 2024 LiveLaw (SC) 229

Dying Declaration

Dying declaration can be the sole basis of the conviction if it inspires the full confidence of the court. The Court is required to satisfy itself that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. Where the Court is satisfied about the dying declaration being true and voluntary, it can base its conviction without any further corroboration. There cannot be an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (Para 7) Naeem v. State of Uttar Pradesh, 2024 LiveLaw (SC) 199

Enforcement of Law

Power to court to enforce laws – It is not the function of the court to see the day-to-day enforcement of the law; that being the function of the Executive, but because of the non-functioning of the enforcement agencies, the courts out of necessity may pass orders directing the enforcement agencies to implement the law. (Para 77) In Re: T.N. Godavarman Thirumulpad v. Union of India, 2024 LiveLaw (SC) 198

Environment

Fundamental right to a healthy environment – Sustainable development – All human beings have a fundamental right to a healthy environment, commensurate with their well-being, coupled with a corresponding duty of ensuring that resources are conserved and preserved in such a way that the present as well as future generations will be aware of them equally. (Para 77) In Re: T.N. Godavarman Thirumulpad v. Union of India, 2024 LiveLaw (SC) 198

Order of closure of industry – The closure of the industry is a matter of last option and that an opportunity for remediation ought to be granted. The nature of the violations and severity of breach of environmental norms, left neither the statutory authorities nor the High Court with the option to take any other view. The TNPCB would be acting within the scope of its statutory powers while directing closure of plant, for the protection of the environment in accordance with law. (Para 21 & 24) Vedanta Ltd. v. State of Tamil Nadu, 2024 LiveLaw (SC) 211

Polluter pays principle – Those who pollute or degrade the environment should bear the costs of mitigation and restoration. Economic activities should not come at the expense of environmental degradation or the health of the population. (Para 24) Vedanta Ltd. v. State of Tamil Nadu, 2024 LiveLaw (SC) 211

Principle of Sustainable Development – The concept of intergenerational equity – The “present residents of the earth hold the earth in trust for future generations and at the same time the present generation is entitled to reap benefits from it.” The planet and its invaluable resources must be conscientiously conserved and responsibly managed for the use and enjoyment of future generations, emphasising the enduring obligation to safeguard the environmental heritage for the well-being of all. (Para 27) Vedanta Ltd. v. State of Tamil Nadu, 2024 LiveLaw (SC) 211

Right to a clean environment – All persons have the right to breathe clean air, drink clean water, live a life free from disease and sickness, and for those who till the earth, have access to uncontaminated soil. These rights are not only recognized as essential components of human rights but are also enshrined in various international treaties and agreements, such as the Universal Declaration of Human Rights, the Convention on Biological Diversity, and the Paris Agreement. These rights must be protected and upheld by governments and institutions worldwide, recognizing that they are essential for sustainable progress. (Para 26 & 28) Vedanta Ltd. v. State of Tamil Nadu, 2024 LiveLaw (SC) 211

Environment (Protection) Rules, 1986

Rule 5(3) and Constitution of India; Article 21 – Procedure of inviting objections to the draft Environmental clearance (EC) notification – Held, before the issue of the second EC notification, the procedure of inviting objections to the draft notification was followed, and the objections were considered. Hence, there is no reason to dispense with the requirement of inviting objections before publishing the impugned notification. Article 21 guarantees a right to live in a pollution-free environment and therefore, the participation of the citizens is very important by allowing them to raise objections to the proposed notification. Hence, their participation cannot be prevented by casually exercising the power under sub-rule (4) of Rule 5. (Para 22) Noble M. Paikada v. Union of India, 2024 LiveLaw (SC) 252

Rule 5(4) – Requirement of public notice for modifying EC notifications can be dispensed with in 'public interest' – The Central Government for modifying EC notifications came to the conclusion that in the public interest, the requirement of prior publication of notice was required to be dispensed with. The document recording the satisfaction of the competent authority about the existence of public interest and the nature of the public interest ought to have been produced by the Ministry. As no such document was produced it can be concluded that the drastic decision to invoke Rule 5(4) was made without any application of the mind. Hence, the decision-making process has been vitiated. Therefore, the inclusion of item 6 of the substituted Appendix-IX will have to be held illegal. (Para 23 & 24) Noble M. Paikada v. Union of India, 2024 LiveLaw (SC) 252

Environment (Protection) Act, 1986 and Environment (Protection) Rules, 1986 – Object – The object of the EP Act is to provide for the protection and improvement of the environment. Object of mandatory requirement of obtaining environmental clearance notification for projects was to minimize the damage to environment while implementing projects. (Para 9 & 25) Noble M. Paikada v. Union of India, 2024 LiveLaw (SC) 252

Evidence Law

Burden of Proof – The threshold of the 'burden of proof' required to be discharged, when challenging a particular charge as an “illegal charge”, is only on the preponderance of probabilities, upon which the onus will shift on the authorities to establish how the particular charge is valid. Railways failed to establish that 444 kms was the correct chargeable distance, hence, it was declared that the said computation was illegal. (Para 121) Union of India v. Indian Oil Corporation Ltd., 2024 LiveLaw (SC) 256

Conclusive Evidence – The accused persons had sought to place reliance on income tax returns and income tax assessment orders. Held, income tax returns and orders may be admissible as evidence but are not themselves conclusive proof of lawful source of income under Section 13 of the Prevention of Corruption Act and that independent evidence to corroborate the same would be required. The probative value of value of the Orders of the Income Tax Authorities, including the Order of the Income Tax Appellate Tribunal and the subsequent Assessment Orders, would depend on the nature of the information furnished and findings recorded in the order, and would not ipso facto either conclusively prove or disprove a charge. The High Court has rightly not discharged the appellants based on the Orders of the Income Tax Authorities. (Para 29 & 32) Puneet Sabharwal v. CBI, 2024 LiveLaw (SC) 260

Conviction on sole evidence of victim – Conviction undoubtedly can be recorded on the sole evidence of a victim of crime; however, it must undergo a strict scrutiny through the well settled legal principles. (Para 22) Nirmal Premkumar v. State, 2024 LiveLaw (SC) 221

Court has to strike a balance between testimonies of Injured Witness & Interested Witness. The evidence of an injured witness is considered to be on a higher pedestal than that of a witness simpliciter. (Para 28 & 34) Periyasamy v. State, 2024 LiveLaw (SC) 244

Credibility of testimony of the victim in matters involving sexual offences –The statement of the prosecutrix ought to be consistent from the beginning to the end (minor inconsistences excepted), from the initial statement to the oral testimony, without creating any doubt qua the prosecution's case. The Court can rely on the victim as a “sterling witness” without further corroboration, but the quality and credibility must be exceptionally high. While a victim's testimony is usually enough for sexual offence cases, an unreliable or insufficient account from the prosecutrix, marked by identified flaws and gaps, casts serious doubt with regard to the veracity of the prosecution version and could make it difficult for a conviction to be recorded. Considering the evidence of a victim subjected to a sexual offence, the Court does not necessarily demand an almost accurate account of the incident and allows the victim to provide her version based on her recollection of events, to the extent reasonably possible for her to recollect. If the Court deems such evidence credible and free from doubt, there is hardly any insistence on corroboration of that version. Material contradictions apparent in the depositions of prosecution witnesses, including the victim, significantly undermine the credibility of the prosecution version. Enough missing links present to extend the benefit of doubt to the accused. (Para 15, 16, 17 & 22) Nirmal Premkumar v. State, 2024 LiveLaw (SC) 221

Circumstantial evidence – Chain of circumstances – The circumstances set out are by themselves consistent with the sole hypothesis that the accused and the accused alone is the perpetrator of these murders which were most foul. Held, the circumstances presented in evidence in this case meets the ingredients that are required to be established. Hence, no reason to interfere with the concurrent conviction recorded by the trial Court and the High Court against the appellant. (Para 15) Navas @ Mulanavas v. State of Kerala, 2024 LiveLaw (SC) 248

Circumstantial evidence – Panchsheel or the five principles essential to be kept in mind while convicting an accused in a case based on circumstantial evidence: - (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to 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. (Para 14) Navas @ Mulanavas v. State of Kerala, 2024 LiveLaw (SC) 248

Delay in filing the FIR and delay in examination of prosecution witness – The delay therefore renders the circumstances questionable. Hence, it cannot be said that the prosecution had succeeded in establishing its case against the two accused persons beyond reasonable doubt warranting a conviction under Section 302 IPC. (Para 42) Periyasamy v. State, 2024 LiveLaw (SC) 244

Incidental witnesses – The incident, which transpired partly within the confines of the house and extended slightly beyond the deceased's premises, the family members and close relatives naturally become the witnesses. These individuals cannot be considered incidental witnesses; instead, they emerge as the most natural witnesses. (Para 29) Thoti Manohar v. State Of Andhra Pradesh, (2012) SCC 7 723; referred. State of Punjab v. Gurpreet Singh, 2024 LiveLaw (SC) 218

Independent witness – No independent witnesses were examined – The non-examination of independent witnesses would not be fatal to a case set up by the prosecution but if witnesses examined are found to be 'interested' then, the examination of independent witnesses would assume importance. It is hard to conceive how the Trial Court concluded that despite being the first cousin of D-1 and himself a person injured in the incident, PW-1 was not an interested witness. Further, considering categorical statement that “the wine shop is in the main road” and “the wine shop would be crowded always” the joining of independent witnesses ought not to have been a difficult task but, yet, it remained unachieved. (Para 31) Periyasamy v. State, 2024 LiveLaw (SC) 244

Insufficiency of evidence – Sufficiency of the materials on record - Ordinarily the court should not get into or look into the sufficiency of the materials on record on the basis of which the requisite subjective satisfaction is arrived at by the Detaining Authority. However, if the facts of the case are such that the court is required to go into such issues, it may be done. The detention of the detenue is only relied upon on his confessional statement before the police and there is no test identification parade carried out by the police. There is nothing to indicate that the nefarious activities of the detenu created an atmosphere of panic and fear in the minds of the people of the concerned locality. Held, it is a case of and it prima facie, appears that the detenu might have been picked up by the police on suspicion and then relied upon his confessional statement before the police. (Para 33) Nenavath Bujji v. State of Telangana, 2024 LiveLaw (SC) 253

Offence of sexual harassment in a public place, as opposed to one committed within the confines of a room or a house, or even in a public place but away from the view of the public, stands on different premise. If any doubt arises in the Court's mind regarding the veracity of the victim's version, the Court may, at its discretion, seek corroboration from other witnesses who directly observed the incident or from other attending circumstances to unearth the truth. (Para 18) Nirmal Premkumar v. State, 2024 LiveLaw (SC) 221

Evidence Act, 1872

Section 9 – Test Identification parade – Identification of the appellant by witness is quite doubtful as no proper identification parade has been conducted. Witness clearly states that he has identified the accused persons out of two people shown by the police. In the absence of proper identification parade being conducted, the identification for the first time in the Court cannot be said to be free from doubt. (Para 6 & 7) Jafar v. State of Kerala, 2024 LiveLaw (SC) 238

Section 106 – Burden of proof – When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 106 is not intended to relieve the prosecution of its duty. However, in exceptional cases where it could be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are especially within the knowledge of the accused, the burden will be on the accused since he could prove as to what transpired in such scenario, without difficulty or inconvenience. In this case, when an offence like multiple murders is committed inside a house in secrecy, the initial burden has to be discharged by the prosecution and once the prosecution successfully discharged the burden cast upon it, the burden did shift upon the appellant being the only other person inside the four corners of the house to offer a cogent and plausible explanation as to how the offences came to be committed. The appellant has miserably failed to prove. (Para 12) Navas @ Mulanavas v. State of Kerala, 2024 LiveLaw (SC) 248

Section 25 – Confession before a police office – Confession of an accused recorded by a Police Officer is not admissible in evidence as the same is hit by Section 25 of the Evidence Act. (Para 23) Mohammed Khalid v. State of Telangana, 2024 LiveLaw (SC) 183

Fair Opportunity

Neither arbitrariness nor malice found in the decision of the appellant-Board – The appellant-Board initially tried to purchase cardamom by issuing tenders and calling for bids, however due to failure of bidders to qualify the appropriate quality, the Board authorised the Chief Executive Officer to procure cardamom from local sources. Further, notice to purchase cardamom was published on the notice board and after price negotiations, respondent no. 2 was given supply orders after quoting the lowest rates. Hence, the decision of the appellant Board is legal, fair and transparent. There is neither arbitrariness nor malice in the decision of the appellant-Board as all the prospective bidders were given a fair chance. (Para 22) Travancore Devaswom Board v. Ayyappa Spices, 2024 LiveLaw (SC) 207

Goonda Act

Telangana Prevention of Dangerous Activities of BootLeggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders Land-Grabbers, Spurious Seed Offenders, Insecticide Offenders, Fertiliser Offenders, Food Adulteration Offenders, Fake Document Offenders, Scheduled Commodities Offenders, Forest Offenders, Gaming Offenders, Sexual Offenders, Explosive Substances Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986 (Act 1986); Section 2(g) – Preventive detention is challenged – Difference between 'law and order' and 'public order' – In order to pass an order of detention under the Act 1986 against any person, the Detaining Authority must be satisfied that he is a “GOONDA” within the meaning of Section 2(g) and to prevent him from acting in any manner prejudicial to the maintenance of public order, it necessary that he is preventively detained. Held, mere registration of the two FIRs for the alleged offences of robbery etc. could not have been made the basis to preventively detaining the appellant herein on the assumption that he is a “GOONDA”. What has been alleged against the detenu could have raised the problems relating to 'law and order' but it is difficult to say that they impinged on 'public order'. Further held, to bring the activities of a person within the expression of “acting in any manner prejudicial to the maintenance of public order” the activities must be of such a nature that the ordinary laws cannot deal with them or prevent subversive activities affecting society. The true distinction between the areas of 'law and order' and 'public order' lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Inability on the part of the state's police machinery to tackle the law and order situation should not be an excuse to invoke the jurisdiction of preventive detention. (Para 20, 31, 32) Nenavath Bujji v. State of Telangana, 2024 LiveLaw (SC) 253

Act 1986; Section 2(a) –The Explanation to Section 2(a) provides that a person shall be deemed to be “acting in any manner prejudicial to the maintenance of public order” when such person is a “GOONDA” and engaged in activities which affect adversely or are likely to affect adversely the maintenance of public order. 'Public order' shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely, inter alia if any of the activities of any person referred to in Section 2(a) directly or indirectly, are causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. (Para 23) Nenavath Bujji v. State of Telangana, 2024 LiveLaw (SC) 253

Act 1986; Section 3(2) – Subjective satisfaction of detaining authority – The Detaining Authority should take into consideration only relevant and vital material to arrive at the requisite subjective satisfaction. There is an implicit duty to apply mind to the pertinent and proximate matters and eschew those which are irrelevant & remote. If the detaining authority does not consider relevant circumstances or considers wholly unnecessary, immaterial and irrelevant circumstances, then such subjective satisfaction would be vitiated. The satisfaction cannot be inferred by mere statement in the order that “it was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order”. To arrive at a proper satisfaction, the detaining authority must examine (i) the material adduced against the prospective detenu to satisfy itself whether his conduct or antecedent(s) reflect that he has been acting in a manner prejudicial to the maintenance of public order and, (ii) whether it is likely that the said person would act in a manner prejudicial to the public order in near future unless he is prevented from doing so by passing an order of detention. Nenavath Bujji v. State of Telangana, 2024 LiveLaw (SC) 253

Act 1986; Section 2(a) –The Explanation to Section 2(a) provides that a person shall be deemed to be “acting in any manner prejudicial to the maintenance of public order” when such person is a “GOONDA” and engaged in activities which affect adversely or are likely to affect adversely the maintenance of public order. 'Public order' shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely, inter alia if any of the activities of any person referred to in Section 2(a) directly or indirectly, are causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. (Para 23) Nenavath Bujji v. State of Telangana, 2024 LiveLaw (SC) 253

Act 1986 – Object – To prevent crime and to protect the society from the anti-social elements and dangerous characters by placing them under detention for such a duration as would disable them from resorting to undesirable criminal activities. The provisions of the Act are intended to deal with habitual criminals, dangerous and desperate outlaws, who are so hardened and incorrigible that the ordinary provisions of the penal laws and the mortal/moral fear of punishment for crime are not sufficient deterrence for them. (Para 19) Nenavath Bujji v. State of Telangana, 2024 LiveLaw (SC) 253

Act 1986 – Invocation of Section 3 of the 1986 Act is not justified as mere involvement in a sexual offence, including one under Section 376D, by itself will not be sufficient to invoke Section 3 of the 1986 Act. This is for the reason that the 5 offence must be integrally connected 'with a view to prevent him from acting in a manner prejudicial to the maintenance of public order'. It is not decipherable from the order of Detaining Authority coupled with the grounds of detention, or from the Confirmation Order dated 09.08.2023, how the offence is connected to prevent the detenu from acting in a manner prejudicial to the maintenance of public order. (Para 7) Vaddi Lakshmi v. State of Telangana, 2024 LiveLaw (SC) 254

Information Technology Act, 2000

Section 67 – Criminalises the publication and transmission of obscene material in electronic form, covers material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. (Para 7.1) Apoorva Arora v. State, 2024 LiveLaw (SC) 243

Section 67A – The facts of the present case certainly do not attract Section 67A as the complainant's grievance is about excessive usage of vulgar expletives, swear words, and profanities. There is no allegation of any 'sexually explicit act or conduct' in the complaint and as such, Section 67A does not get attracted. Section 67A criminalises publication, transmission, causing to publish or transmit – in electronic form – any material that contains sexually explicit act or conduct. Though the three expressions “explicit”, “act”, and “conduct” are open-textured and are capable of encompassing wide meaning, the phrase may have to be seen in the context of 'obscenity' as provided in Section 67. (Para 46 & 47) Apoorva Arora v. State, 2024 LiveLaw (SC) 243

Insolvency and Bankruptcy Code, 2016

Pointing out the ambiguities or lack of specific details or data, post acceptance of the resolution plan by the Committee of Creditors, should be rejected, except in an egregious case were data and facts are fudged or concealed. Absence or ambiguity of details and particulars should put the parties to caution, and it is for them to ascertain details, and exercise discretion to submit or not submit resolution plan. (Para 15) Deccan Value Investors L.P. v. Dinkar Venkatasubramanian, 2024 LiveLaw (SC) 265

Records of corporate debtor, who are in financial distress, may suffer from data asymmetry, debatable or even wrong data. Thus, the provision for transactional audit etc, but this takes time and is not necessary before information memorandum7 or virtual data room is set up. Financial experts being aware, do tread with caution. Information memorandum is not to be tested applying “the true picture of risk” obligation, albeit as observed by the NCLAT the resolution professional's obligation to provide information has to be understood on “best effort” basis. (Para 16) Deccan Value Investors L.P. v. Dinkar Venkatasubramanian, 2024 LiveLaw (SC) 265

Resolution plans are not prepared and submitted by lay persons. They are submitted after the financial statements and data are examined by domain and financial experts, who scan, appraise evaluate the material as available for its usefulness, with caution and scepticism. Inadequacies and paltriness of data are accounted and chronicled for valuations and the risk involved. It is rather strange to argue that the superspecialists and financial experts were gullible and misunderstood the details, figures or data. The assumption is that the resolution applicant would submit the revival/resolution plan specifying the monetary amount and other obligations, after in-depth analysis of the fiscal and commercial viability of the corporate debtor. (Para 15) Deccan Value Investors L.P. v. Dinkar Venkatasubramanian, 2024 LiveLaw (SC) 265

Interim Order

Interim order of trial court not violated – Interim order restraining defendants No.1 to 4 from alienating the property was passed by the Trial Court on 31.05.1999 and on that date, defendant No. 7 was not party to the suit as he was impleaded only on 02.01.2001. There is no order passed by the Trial Court thereafter directing that the interim order was further extended qua the newly impleaded defendant also, hence it cannot be said to be a case of wilful violation of the order passed by the Trial Court. (Para 22) Srinivas Raghavendrarao Desai v. Kumar Vamanrao @ Alok, 2024 LiveLaw (SC) 194

Interim Relief

Interim Relief – Test for grant of interim injunction – The three-fold test is establishing (i) a prima facie case, (ii) balance of convenience and (iii) irreparable loss or harm. This three-fold test must not be applied mechanically, to the detriment of the other party and in the case of injunctions against journalistic pieces, often to the detriment of the public. While granting interim relief, the court must provide detailed reasons and analyze how the three-fold test is satisfied. Merely recording that a prima facie case exists, that the balance of convenience is in favour of the grant of injunction and that an irreparable injury would be caused, would not amount to an application of mind to the facts of the case. The three-fold test cannot merely be recorded as a mantra without looking into the facts on the basis of which an injunction has been sought. (Para 5 & 13) Bloomberg Television v. Zee Entertainment, 2024 LiveLaw (SC) 258

Interim Relief – Interim injunction against publication of journalists – The grant of a pre-trial injunction against the publication of an article may have severe ramifications on the right to freedom of speech of the author and the public's right to know. Courts should not grant ex-parte injunctions except in exceptional cases. In all other cases, injunctions against the publication of material should be granted only after a fullfledged trial is conducted or in exceptional cases, after the respondent is given a chance to make their submissions. An additional consideration of balancing the fundamental right to free speech with the right to reputation and privacy must be borne in mind. (Para 7 & 9) Bloomberg Television v. Zee Entertainment, 2024 LiveLaw (SC) 258

Power of appellate court to interfere in interim injunction – The grant of an interim injunction is an exercise of discretionary power and the appellate court will usually not interfere with the grant of interim relief. However, appellate courts must interfere if the discretion has been exercised “arbitrarily, capriciously, perversely, or where the court has ignored settled principles of law regulating the grant or refusal of interlocutory injunctions. The grant of an ex parte interim injunction by way of an unreasoned order, definitely falls within the above formulation, necessitating interference by the High Court. (Para 12) Bloomberg Television v. Zee Entertainment, 2024 LiveLaw (SC) 258

Interpretation of Statutes

Interpretation of statutes – In interpreting a statute or a rule, the court must bear in mind that the legislature does not intend what is unreasonable or impossible. The expression reasonable means rational, according to the dictate of reason and not excessive or immoderate. If a rule leads to an absurdity or manifest injustice from any adherence to it, the court can step in. A statute or a rule ordinarily should be most agreeable to convenience, reason and as far as possible to do justice to all. A law/rule should be beneficial in the sense that it should suppress the mischief and advance the remedy. (Para 80) Union of India v. Indian Oil Corporation Ltd., 2024 LiveLaw (SC) 256

Juvenile Justice (Care and Protection of Children) Act, 2015

Section 15(1) & 19(1) – The procedure provided under Sections 15 and 19 has been held to be mandatory by this Court in the case of Ajeet Gurjar v. State of Madhya Pradesh. Held, there has been a flagrant violation of the mandatory requirements of Sections 15 and 19 of the JJ Act. Neither was the charge sheet against the accused appellant filed before the Board nor was any preliminary assessment conducted by the Board under Section 15, so as to find out whether the accused appellant was required to be tried as an adult. In absence of a preliminary assessment being conducted by the Board under Section 15, and without an order being passed by the Board under Section 15(1) read with Section 18(3), it was impermissible for the trial Court to have accepted the charge sheet and to have proceeded with the trial of the accused. All the proceedings taken against the accused appellant are vitiated as being in total violation of the mandatory procedure prescribed under the JJ Act. (Para 37 & 38) Thirumoorthy v. State, 2024 LiveLaw (SC) 262

Section 15(1), 18(3) & 19(1) – Section 15(1) provides that in case where a heinous offence/s (defined under Section 2(33) of the JJ Act) are alleged to have been committed by a child who has completed or is above the age of sixteen years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he committed the offence. Section 18(3) provides that where the Board after preliminary assessment under Section 15 opines that there is a need for the said child to be tried as an adult, then the Board may order transfer of the trial of the case to the Children's Court having jurisdiction to try such offences. By virtue of Section 19(1), the Children's Court, upon receiving such report of preliminary assessment undertaken by the Board under Section 15 may further decide as to whether there is a need for trial of the child as an adult or not. (Para 32, 33 & 34) Thirumoorthy v. State, 2024 LiveLaw (SC) 262

Section 94(2) – Mode for determination of age – In the order of priorities, the date of birth certificate from the school stands at the highest pedestal in determination of age. The ossification test has been kept at the last rung to be considered, only in the absence of both certificate from school and birth certificate issued by a Corporation/Municipal Authority/Panchayat. Opinion of medical board that estimation of age based on X-ray examination becomes uncertain after 25 years is accepted. (Para 19 & 20) Vinod Katara v. State of U.P., 2024 LiveLaw (SC) 210

Land Law

Land Revenue Code; Section 36A and Registration Act, 2008; Section 17 – Restriction in conveyance of land by tribal in favour of non-tribal – Under Section 36A, restriction is only in case of transfer by way of sale, gift, exchange, mortgage, lease or otherwise and there is no bar for a tribal to enter into an agreement to sell and seeking advance sale consideration. Previous sanction is to be taken before conveyance could be made and conveyance by way of sale would take place only at the time of registration of a sale deed in accordance with Section 17 of the Registration Act, 2008. Babasaheb Dhondiba Kute v. Radhu Vithoba Barde, 2024 LiveLaw (SC) 225

The tenant holding possession of the Watan property under the Maharashtra Hereditary Offices Act, 1874, on the 'Tiller's Day', which is not subjected to payment of land revenue to the State Government, would be entitled to exercise their right of statutory purchase for purchasing the tenanted Watan property under the Maharashtra Revenue Patels (Abolition of Offices) Act, 1962. Baban Balaji More v. Babaji Hari Shelar, 2024 LiveLaw (SC) 234

Medical Negligence

Evidentiary value of expert opinion – In cases of deficiency of medical services, duty of care does not end with surgery – Findings of the DCDRC that there were lapses in duty of care by Respondent vis a vis both pre-operative and post-operative standards for conducting a traumatic cataract surgery is affirmed. Further, the expert opinion establishes a nexus between the lapses in post-operative care and the development of loss of vision after the operation. Despite the presence of evidence pointing towards negligence of the Respondents, both the forums (SCDRC and the NCDRC) failed to consider it and have mechanically and exclusively relied on the Medical Council report which did not delve into the nuances of pre-operative and post-operative care. While the report of the Medical Council can be relev