LEXKHOJ FLASHBACK 2016 (September-October): COMPILATION OF IMPORTANT JUDGMENTS

lexkhoj-flashbackAs 2016 is going to end soon and we are about to see the dawn of 2017, it is apt time to re look at what Supreme Court and High Courts said this year. What new interpretation of law did the Apex Court offer and what Law has been struck down? We at LEXKHOJ, have compiled important Judgments (Monthly Basis) delivered by the Supreme Court and High Courts this year. Judgments pronounced in the month of September & October  2016 can be read here…

SEPTEMBER 2016

Magistrate Can ‘Interfere’ If Investigation Is Improper, Unfair: Allahabad HC

The Allahabad High Court, in Dr. Kuldeep Kaushik vs. State of UP, has held that a magistrate has the authority to interfere in a case investigation if it is not going on in a proper or fair manner. In the instant case, a magistrate had dismissed a surrender application filed by a doctor, accused of medical negligence, on the ground that any interference in the investigation cannot be done. In the surrender application, it was requested that various papers, along with surrender application, be sent to the Investigating Officer and after taking into consideration the papers, a report may be called for from the Investigating Officer.

No Suit Maintainable Against Orders Passed By Statutory Authorities: Delhi HC

The Delhi High Court in Union Of India & Ors. Vs. Shri Ishwar Singh has held that a suit cannot be filed against orders that are passed by the statutory authorities under different statutes, and these can be challenged only by means of writ petitions under Articles 227 and/or 226 of the Constitution of India.

HC can entertain amendment plea in pending suits originally valued below Rs 2 crore: Delhi HC

The Delhi High Court in Subhashini Malik Vs. S.K. Gandhi, has held that an amendment application to amend pecuniary value for the purposes of jurisdiction (in view of Delhi High Court Amendment Act, 2015) can be entertained by the high court and upon the suit being of lesser than Rs 2 crore, the court does not become functus officio.

Gujarat HC Asks ‘Sanyasi’ To Earn And Maintain His Wife

“Do social service, but maintain your wife,” said the Gujarat High Court to a ‘sanyasi’ who had approached it challenging a family court order that required him to pay maintenance to his wife.

The court observed: “The fact remains that the applicant is a healthy person. When he selected not to earn anything by resigning from the State Bank of Hyderabad and if he is residing in Ananddham Ashram, New Delhi, on his own, it is his moral, social and legal liability to maintain his wife by doing some earning activity so as to comply with the order of maintenance, which was passed in favour of the wife in 2002.”

Special Courts For Speedy Trial Of ‘Criminal’ Legislators: SC Issues Notice To Centre, ECI

The Supreme Court has issued notice to the Centre and the Election Commission (EC) on a PIL seeking setting up of special courts to speed up criminal cases against legislators. The PIL, filed by advocate and Delhi BJP spokesperson Ashwini Kumar Upadhyay, demanded that an order be issued directing the Centre to take necessary steps to debar persons charged with criminal offences from contesting elections, forming a political party and becoming office-bearers of any party. It sought a direction for providing adequate infrastructure to set up special courts to decide criminal cases related to members of the legislature, executive and judiciary within a year.

Criminal Case Pendency Can’t Be Sole Basis to Suspend Disciplinary Proceedings: SC

The Supreme Court in State Bank of India & Ors. Vs. Neelam Nag, has held that pendency of a criminal case against an employee cannot be the sole basis to suspend the disciplinary proceedings initiated against him/her for an indefinite period.

Contending that Clause 4 of the Memorandum of Settlement, which grants protection to bank employees from facing departmental proceedings until the completion of the trial of the criminal case, the delinquent employee approached the High Court against initiation of disciplinary proceedings.

Not Proving Motive Raises Suspicion In Prosecution Case: SC

The Supreme Court in Pankaj vs. State of Rajasthan, has observed that though motive is not sine qua non for the conviction of the accused, the effect of not proving motive raises a suspicion in the mind. The main contention of the appellant before the apex court in this case was that there was no motive behind the killing and it is beyond imagination that a person without any provocation, motive or instigation will straight away open fire. The accused had challenged his conviction under Section 302 IPC by the High Court of Rajasthan.

Giving the benefit of doubt to the accused, the court said: “When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence.”

HC Has Power To Transfer Matrimonial Proceedings To Different Court: Tripura HC

The Tripura High Court in Dipika Sharma vs. Sudip Sharma, has held that the high court, by exercising its power under Section 24 of the Code of Civil Procedure, can transfer a matrimonial proceeding from family court to district court (in a district where there is no family court) and from district court to family court or from district court to other district court. The court also held that a maintenance application under Section 125 CrPC pending before a magistrate can also be transferred to a family court and vice versa, exercising power conferred to the high court under 407 CrPC.

Unsigned Document In Form Of Notice Not Valid Under Section 138(B) Of NI Act: Bombay HC

Sign any notice before it is sent! Can a typed document in the form of a notice bearing neither signature nor any initial of an advocate or the complainant be called a notice in compliance with clause (b) of Section 138 of the Negotiable Instruments Act? The Bombay High Court has held that it is not.

Bar Council Can’t Decide Property Disputes: Allahabad HC Quashes Proceedings Against Senior Advocate Zafar M. Naiyer

The Allahabad High Court has quashed disciplinary proceedings against a senior advocate initiated by the Uttar Pradesh Bar Council on a complaint accusing him of grabbing land.

The court, observing that the entire property dispute is pending adjudication in the civil court, said that U.P. State Bar Council should have deferred the matter till a verdict comes from the competent court, on the said property dispute. Quashing the entire proceedings initiated by Bar Council, the Court observed: “in our considered opinion, ongoing proceedings would be an abuse of the process for the simple reason that U.P. State Bar Council certainly will not take upon itself to decide the property dispute i.e. the main dispute and the incidental matter that has been referred to U.P. State Bar Council is purely dependent on the main issue as to whether petitioner has exclusive right to the passage and erect the gate, accordingly, the proceedings in question are quashed, at this stage.”

In SPS Rathore Case, SC Addresses Three Vital Questions Of Law

In SPS Rathore vs. CBI & Ors., the Supreme Court has dealt with three important questions of law in respect of ingredients of Section 354 IPC, admissibility of former statements u/s 157 Evidence Act and evidentiary value of expert opinion by a handwriting expert.

  • Mere knowledge that the modesty of a woman is likely to be outraged is sufficient to attract Section 354 IPC
  • Statements made to person authorised by state govt to investigate the matter admissible u/s 157 Evidence Act
  • Not much weight to be given to evidence of handwriting expert.

SC Commutes Death Penalty In Triple Murder Case

A Supreme Court order dated 1st September, 2016, which escaped the scrutiny of proponents and opponents of death penalty, has been accessed by Live Law. Vide this order, a three-judge Bench of the apex court comprising Justice Ranjan Gogoi, Justice Prafulla C Pant and Justice Uday Umesh Lalit has commuted the death penalty awarded to one Shyam Singh from Madhya Pradesh after he was found guilty of committing parenticide and murdering his nephew

Social Security To The Legal Profession Becomes An Essential Part Of Legal System: SC

The Supreme Court, in Cardamom Marketing Corporation & Anr. Vs. State Of Kerala & Ors. observed that providing social security to the legal profession becomes an essential part of any legal system which has to be effective, efficient and robust to enable it to provide necessary service to the consumers of justice. The Court has upheld levy of additional court fee in respect of each appeal or revision before the tribunals and appellate authorities by or under special or local law, at the rate of 0.5% of the amount involved in the dispute in cases, where it is capable of valuation, and at the rate of ₹50 in other.

Dismissing the writ petitions and the appeal, the court observed that providing social security to the legal profession becomes an essential part of any legal system which has to be effective, efficient and robust to enable it to provide necessary service to the consumers of justice.

‘Encroachers’ Of Defence Land Have No Right To Vote In Cantonment Board Elections: SC

The Supreme Court in Cantonment Board, Panchamarhi vs. Gopal Das Kabra & Ors has held that persons who are living in the cantonment area in illegally constructed houses, which are not assigned any number, will not be entitled for inclusion in the electoral roll to be prepared in accordance with Rule 10 (3) of the Cantonment Rules. The Bench comprising Justice Anil R. Dave and Justice L. Nageswara Rao, referring to various provisions of the Act, also held that persons, who were ordinarily residing and carrying on business for temporary periods in illegally constructed houses, were not eligible to vote in the Cantonment Board elections. The Supreme Court dismissed an appeal filed by the Cantonment Board and another person challenging the judgment of Madhya Pradesh High Court which had held that an encroacher cannot be an elector.

Married Daughter, Who Has Legal Right Of Residence In Building, Can Seek Tenant’s Eviction: SC

The Supreme Court in Gulshera Khanam vs. Aftab Ahmad, has held that any woman, married or unmarried, who has a legal right of residence in the building, is also included in the definition of “family” in relation to landlord, and is entitled to seek eviction of the tenant from such building for her bonafide need. The Bench comprising Justice J. Chelameswar and Justice Abhay Manohar Sapre set aside the Allahabad High Court judgment that had held that Section 3(g)(iii) of the of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, includes only an “unmarried daughter” and that the landlord cannot seek eviction for the need of her married daughter.

Family Pension Not Part Of Anyone’s Estate To Be Disposed Of In Will: SC

The Supreme Court in Nitu vs. Sheela Rani, has held that family pension does not form part of the estate of the deceased and it is to be given under the provisions of the relevant pension scheme. The high court, in this case, had held that the mother of deceased employee was entitled to the succession certificate in view of the provisions of Section 8 of the Hindu Succession Act, as she was also one of the heirs to the deceased employee. The widow of the deceased approached the apex court against this order, which held that the mother should also get 50 per cent share in the pension. The apex court bench observed that the mother of a married officer has not been included in the definition of the term “family”, for the reason that as per the provisions of sub-clause (f) of 4(ii) of Family Pension Scheme of the Punjab Government, only parents of an unmarried officer would be a part of the family.

OCTOBER 2016

Courts Can Direct That Subsequent Sentence Shall Run Concurrently With Previous Sentence: SC

The Supreme Court in Shyam Pal vs. Dayawati Besoya, has reiterated that courts can exercise discretion under Section 427 of the Indian Penal Code to the benefit of prisoners in cases where the prosecution is based on a single transaction, no matter even if different complaints in relation thereto might have been filed. The court also observed that such a concession cannot be extended to transactions which are distinctly different, separate and independent of each other and amongst others where the parties are not the same. In the facts of the case, the court ordered that substantive sentences of 10-month simple imprisonment awarded to the appellant for his conviction under Section 138 of the Negotiable Instruments Act in the two complaint cases would run concurrently.

No Authority Can Cancel Registered Documents: SC

The Supreme Court in Satya Pal Anand vs. State of M.P, has held that once the document is registered, it is not open to any authority, under the Registration Act, 1908, to cancel the registration.. The high court, on his writ petition, held that, since the Registering Officer registered the document presented to him for registration, his function is exhausted and he would then become functus officio and no power to impound the document under Section 33 of the Act. This decision by the high court was assailed before the apex court.

The court also held that once the document is registered, it is not open to any authority, under the Act of 1908, to cancel the registration and the remedy of appeal provided under the Act of 1908, in Part XII, in particular Section 72, is limited to the inaction or refusal by the Registering Officer to register a document. The bench also held that power conferred on the Registrar by virtue of Section 68 cannot be invoked to cancel the registration of documents already registered. The court also observed that, there is no express provision in the Registration Act or Rules framed by the State of Madhya Pradesh nor any circular issued by the competent authority of the State of Madhya Pradesh to the effect that the extinguishment deed should bear the signatures of both the vendor and the purchaser and both must be present before the Registering Officer when the document is presented for registration

Those Who Participated In Selection Process Without Protest Can’t Challenge It Later:SC

The Supreme Court in Ashok Kumar vs. State of Bihar, has reiterated that the candidates who failed to raise any objection to a selection process were estopped from turning around and challenging the selection once they were declared unsuccessful. Selections made for promotion from Class IV posts to Class III posts in the district court of Muzaffarpur were quashed by a single bench of the Patna High Court on a writ petition by several unsuccessful candidates. The court also observed that decision in Raj Kumar v. Shakti Raj is distinguishable as it involved a case where government was found to have committed glaring illegalities in the procedure. Hence, in that case, it was held that the principle of estoppel by conduct or acquiescence had no application.  “There was in other words no glaring or patent illegality in the process adopted by the high court,” the bench observed.

Equal Pay For Equal Work’ For Temporary Employees As Well: SC

The Supreme Court, in State of Punjab vs. Jagjit Singh has held that temporary employees would be entitled to draw wages at the minimum of the pay-scale (- at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post.

India is a signatory to the above covenant, having ratified the same on 10.4.1979. There is no escape from the above obligation, in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of ‘equal pay for equal work’ constitutes a clear and unambiguous right and is vested in every employee – whether engaged on regular or temporary basis.

Prosecution Needs To Establish Case Beyond All ‘Reasonable’ Doubts, Not All Doubts: SC

The Supreme Court in Yogesh Singh Vs. Mahabeer Singh, has held that the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts and the rule regarding the benefit of doubt does not warrant acquittal of the accused by resorting to surmises, conjectures or fanciful considerations. The bench observed that the accused was not per se entitled for acquittal on the ground of non-compliance of mandatory provisions of Section 313 CrPC. With regard to the contention with respect to delay in sending FIR to magistrate, the bench said it could not be laid down as a rule of universal application that whenever there is some delay in sending the FIR to the magistrate, the prosecution version becomes unreliable and the trial stands vitiated. When there is positive evidence to the fact that the FIR was recorded without unreasonable delay and investigation started on the basis of that FIR and there is no other infirmity brought to the notice of the court, then in the absence of any prejudice to the accused, it cannot be concluded that the investigation was tainted and the prosecution story rendered unsupportable, the bench added. Restoring the trial court judgment, the court also held that site plan is not a ground to disbelieve the otherwise credible testimony of eye-witnesses.

Delay In Recording Witnesses’ Statements Can Be Fatal For Prosecution Case: SC

The Supreme Court in Harbeer Singh Vs. Sheeshpal, has observed that delay in recording of statements of the prosecution witnesses under Section 161 CrPC., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case.

Enactment Of An Amendment With Retrospective Effect Not An Encroachment Upon Judicial Powers: SC

The Supreme Court in Cheviti Venkanna Yadav vs. State of Telangana and Ors, has upheld the constitutional validity of sub-section (3) of Section 5 of the Andhra Pradesh (Agricultural Produce and Livestock) Markets (Amendment) Act, 2015.

The court observed that after the legislature came into existence, it has the competence to enact any law retrospectively or prospectively within the constitutional parameters (M/s. Rattan Lal and Co. and another etc. v. The Assessing Authority, Patiala and another).

The court also observed that the status of the members have been changed by amending the word “appointed” by substituting it with the word “nominated”. In our considered opinion, by virtue of the amendment, the term which has been reduced for a nominated member stands on a different footing, the bench said.

Age Limit For LLB: Kerala HC Stays Notification, Permits Aspirants To Participate In Selection Process

In a reprieve to hundreds of LL.B. aspirants in Kerala who have crossed the ‘age limit’ prescribed by revived Clause-28 in Legal Education Rules by Bar Council of India, the High Court of Kerala has, in an interim order issued in a batch of petitions challenging the age limit, directed the authorities to permit candidates to participate in the selection process, irrespective of upper age limit. Justice AM Shaffique has stayed the Kerala Government notification dated 21.10.2016, by which Clause-6(iii) of the original prospectus has been amended in accordance with Rule 28 of Legal Education Rules.

As per a recent circular, the Bar Council of India has revived the rule stipulating the maximum age limit for law courses across the country. As per this clause, the upper age limit for admission in LL.B three-year course is 30 years and for LL.B five- year course is 20 years.

Constitutional Club Of India Is A ‘Public Authority’ Under RTI Act: CIC

The Central Information Commission (CIC) has declared the Constitutional Club of India (CCI) as a “public authority” under Section 2(h) of the Right to Information Act.

The Constitution Club of India was opened in February 1947 with the objectives and purposes of fostering social contacts and providing usual amenities of a club life for the benefit of the members of the Indian Constituent Assembly.

Courts Can Use ‘Contempt Of Court’ Restriction, If Speech Undermines Judiciary: SC

The Supreme Court in Het Ram Beniwal & Ors.Vs. Raghuveer Singh, has upheld a Rajasthan High Court order convicting two advocates who made serious allegations of corruption and bias against the high court.

Civil Court Can’t Decide On Challenge To Orders Passed By CISF Disciplinary Authority: Delhi HC

The Delhi High Court in Union of India vs. Braham Pal Singh, has held that a civil court would have no jurisdiction to try and decide a challenge to the orders passed by the disciplinary/statutory authorities under Sections 8 and 9 of the CISF Act. Allowing the second appeal preferred by Union of India, the high court dismissed a suit filed by one Braham Pal Singh, challenging the orders passed by the statutory authorities under Sections 8 and 9 of the CISF Act.

Civil Court Has Power To Try Pending Eviction Suits, If The Suit Property Comes Under Notified Area During Pendency: SC

The Supreme Court in Rajender Bansal & Ors. Vs. Bhuru (D), has held that a civil court would not cease to have jurisdiction to try a pending suit of eviction if the suit property came under the notified area during pendency of the suit.

Court Cannot Take Cognizance Of Offence Chapter Under IV Of The Drugs And Cosmetics Act On The Basis Of Police Report: Bombay HC

The Bombay High Court in Rajendra  vs. State Of Maharashtra, has held that the cognisance of offences punishable under Chapter IV of the Drugs and Cosmetics Act, 1940,  cannot be taken on the basis of the charge sheet filed by the police under section 173 of the Code of Criminal Procedure (CrPC).

Referring to provisions of the Act, the court observed that provisions of section 36-AC of the Act would prevail over the general provisions of the CrPC, classifying the offences as cognisable or non-cognisable, and the offences those have been enumerated in section 36-AC only would be treated as cognisable. “As such, the offence under section 27 (b) (ii) of the Act being non-cognisable, the police machinery was not empowered to take cognisance thereof and conduct investigation, without the order of the Magistrate vide section 155 (2) of the Code of Criminal Procedure. It is not the case of the respondents that the investigation into the present case was carried out after obtaining order from the Magistrate vide section 155 (2) of the Code. Thus, the investigation conducted by the police officer in this case is illegal.” the court observed. The bench added that the offence under section 27 (b) (ii) of the Act being non-cognisable, the police machinery was not empowered to take cognisance thereof and conduct investigation, without the order of the magistrate vide section 155 (2) of the CrPC.

SC Strikes Down Words ‘Adult Male’ From The Definition Of “Respondent” Under Section 2(Q) Of DV Act; Relief Possible Against Minors, Women

Now a complaint of domestic violence can be made against any person who is, or has been, in a domestic relationship with the aggrieved person as the Supreme Court in an important pronouncement in Hiral P Harsora and ors Vs. Kusum Narottamdas Harsora & Ors, has struck down the words “adult male” before the word “person” in Section 2(q) of Domestic Violence Act holding that these words discriminate between persons similarly situated, and is contrary to the object sought to be achieved by the Domestic Violence Act. The court also said that the proviso to Section 2(q) of the Act, being rendered otiose, also stands deleted.

Courts Can’t Exercise ‘Judicial Discretion’ Against Statute Or Rules: SC

The Supreme Court in Anurag Kumar Singh & Ors. Vs. State of Uttarakhand, has observed that courts, in exercise of judicial discretion, cannot give any direction contrary to the statute or rules made there under and it is to be exercised only when there are two or more possible lawful solutions.

Competent Authority Under PMP Act Should Be Serving/Retired Judicial Official: SC

The Supreme Court in Laljibhai Kadvabhai Savaliya & Ors. vs. State of Gujarat, has held that the competent authority under the provisions of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962,  must be someone who is holding or has held a judicial office not lower in rank than that of a subordinate judge or is a trained legal mind.

the court, however clarified, that actions taken by the competent authority till now, will not in any way stand impaired or be invalidated purely on this count. The court has also directed the Central government to step in immediately and remedy the situation with appropriate measures in this regard.

Forcing Husband To Get Separated From His Parents, Amounts To ’Cruelty’: SC

The Supreme Court of India in Narendra vs. K.Meena has held that persistent effort of the wife to constrain her husband to be separated from the family constitutes an act of ‘cruelty’ to grant divorce.

Section 102 CPC Cannot Be Invoked If Subject Matter Of Suit Involves Something More/Other Than Recovery Of Money: SC

The Supreme Court in Nagarpalika Thakurdwara vs. Khalil Ahmed & Ors, has held that, provisions of Section 102 of the Civil Procedure Code cannot be invoked if the subject matter of the suit is anything other than recovery of money or something more than recovery of money. Section 102 CPC states that no second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees.  In the instant case, the municipality had filed a suit to recover only a sum of Rs.11, 006.07 by way of tax from the respondents. The High Court dismissed the second appeal invoking Section 102 CPC.


Compiled By Ms. Yogita Lohia


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