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SC notes that fundamental right of witnesses to testify in Courts without pressure & threat under serious attack today.
Sai Krishna Muthyanolla
December 1, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions about TN’s Loan Waiver Scheme for small/marginal farmers, protection of witnesses, rights of transgender persons, and social impact of heinous crimes.
Supreme Court: Upholds TN Govt Loan Waiver Scheme to small/marginal farmers
In the case State of Tamil Nadu vs. National South Indian River Interlinking Agriculturist Association, the Supreme Court held that the ‘Loan Waiver Scheme’ for small and marginal farmers cannot be held to be constitutionally suspect merely because it was based on an electoral promise.
The apex court was hearing a challenge to the Tamil Nadu Government’s scheme (dated 13 May 2016) granting a waiver of outstanding crop loans, medium-term (agriculture) loans and long term (farm sector) loans issued to small and marginal farmers. The scheme was being challenged on the ground that it violates the equality clause of the Constitution. The scheme guidelines provide for the classification of farmers as small and marginal, as per the extent of landholding mentioned in the landholding register and loan register at the time of sanction of the agricultural loan. A ‘small farmer’ means a farmer who holds land of 2.5 acres to 5 acres and a ‘marginal farmer’ means a farmer who holds land up to 2.5 acres.
Additionally, the All India Anna Dravida Munnetra Kazhagam (AIADMK) had made an electoral promise to implement the scheme if voted to power. In pursuance of the election promise, the AIADMK introduced the scheme after being voted to power.
The Madras High Court allowed the writ petitions and held that the exclusion of ‘other farmers’ (with land exceeding 5 acres) from the land waiver scheme is discriminatory and violative of Article 14. The high court also directed that the scheme be extended to all farmers including farmers whose landholding exceeds 5 acres.
Taking into account the Situation Assessment of Agricultural Households and Land and Holdings of Households in Rural India 2019, the bench of Justice DY Chandrachud and AS Bopanna noted that due to the distinct degree of harm suffered by the small and marginal farmers as compared to other farmers, it is justifiable that the benefit of the scheme is only provided to a specified class as small and marginal farmers constitute a class in themselves.
The purpose of the scheme is to uplift the distressed farmers, who have been facing the brunt of the erratic weather conditions, low produce, and fall in prices because of the market condition.
The Supreme Court held that it is settled law that the Court cannot interfere with the soundness and wisdom of a policy merely because it was based on an electoral promise. A policy is subject to judicial review on the limited grounds of compliance with the fundamental rights and other provisions of the Constitution. A scheme can be held suspect only within the contours of the Constitution, irrespective of the intent with which the scheme was introduced.
The bench observed that since the classification in the scheme is based neither on the grounds in Article 15 (i.e. religion, race, caste, sex, place of birth) nor on the ‘innate and core trait’ of an individual, it cannot be struck down on the alleged grounds of under-inclusiveness and over-inclusiveness.
Supreme Court: Fundamental right of witnesses to testify in Courts without pressure & threat under serious attack today.
In the case Hari vs. State of Uttar Pradesh, the Supreme Court observed that the right of witnesses to testify in Courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today.
The apex court was hearing a case of honour killing. In this case, the Trial Court had sentenced some of the accused to death and later the High Court commuted the death sentence to life imprisonment. A total of 54 persons were accused under Sections 302/149 of the Indian Penal Code (IPC). On 09 April 1992, evidence from one of the eyewitnesses was initially recorded, where she narrated the sequence of events and the involvement of the accused in the crime. During the trial, applications were filed for consolidation of the cases in which the High Court stayed the trial in 1992 which subsisted till 1998.
On 21 February 1998, when the eyewitness was recalled to depose in Trial Court, she turned hostile. Later, she was declared hostile along with 11 other prosecution witnesses. When the trial resumed in 1998, 12 out of the 20 prosecution witnesses turned hostile.
Upon examining the situation, the bench of Justice L. Nageswara Rao, Sanjiv Khanna and BR Gavai emphasised that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals terrorise or intimidate the witnesses because of which these witnesses either avoid coming to Courts or refrain from deposing truthfully. This unfortunate situation prevails because the State has not undertaken any protective measures to ensure the safety of these witnesses, commonly known as “witness protection”.
In this case, the bench noted that the reasons for the witness turning hostile are understandable as she comes from a lower stratum of the society, living in a village dominated by the caste to which the accused persons belong. Further, the bench opined that the evidence of prosecution witnesses cannot be rejected in toto merely because the prosecution chose to treat them as hostile and cross-examined them.
In the light of other evidence on record (medical, scientific, and documentary evidence) along with the accounts of other witnesses, even if the witnesses have turned hostile, their evidence can be accepted, if they are natural and independent witnesses and have no reason to falsely implicate the accused.
In the present case, the evidence of the abovementioned witness finds complete corroboration from the evidence of other witnesses who are also reliable eyewitnesses of the incident.
In conclusion, the Supreme Court held that the testimonies of the eyewitnesses are credible and have been rightly accepted by the Courts. In addition, the judgement emphasises that the right to testify in Courts in a free and fair manner without any pressure and threat whatsoever is under serious attack today. If one is unable to testify in Courts due to threats or other pressures, then it is a clear violation of Article 19 (1) (a) and Article 21 of the Constitution. Right to life guaranteed to the people of this country also includes in its fold the right to live in a society that is free from crime and fear and the right of witnesses to testify in Courts without fear or pressure.
Allahabad HC: Directs name, gender change of a transgender person in educational records following UP Education Board’s denial.
The Allahabad High Court (Lucknow Bench) directed the Uttar Pradesh Government authorities to take immediate steps for change of name and gender of a Transgender in her educational mark-sheets and certificates.
In this case, the petitioner approached the High Court seeking directions to the Board of High School and Intermediate Education, Allahabad (U.P. Board) to change the name and gender of the petitioner in her matriculation mark-sheet. Thereafter, Council for the Indian School Certificate Examination, New Delhi (ICSE Board) may also change the name and gender in the mark-sheet of intermediate of the petitioner.
The petitioner was suffering from gender dysphoria and, therefore, underwent gender reassignment surgery in October 2017 from male to female. A gazette notification in respect of her name change from ‘X’ to ‘Y’ and gender from ‘male’ to ‘female’ was also published. The petitioner also got an Aadhar, and PAN Card issued in her new name and gender i.e., Y female.
The petitioner also applied for the change in her High School mark-sheet and certificates, however, the same was denied. The Examination Committee decided that changes of name and gender as requested by the petitioner cannot be made as either the Intermediate Education Act, 1921 or regulations framed thereunder contain any such provision.
In a different stance, the State Counsel argued that with regard to change of gender, the certificate can only be issued under Section 7 of The Transgender Persons (Protection of Rights) Act 2019 (read Section 7, clause 3) to a person who is having a certificate under Section 6 of the Act.
Section 6 of the Act states that the District Magistrate shall issue a certificate of identity as a transgender person to the applicant under section 5, and the said certificate shall confer rights and be proof of recognition of their identity as a transgender person.
In this backdrop, the State Counsel argued that since the petitioner did not have a certificate under Section 6 (Issue of certificate of identity) and had changed his gender before coming into the force of the Act, the petitioner is not entitled to apply under Section 7 (Change in gender) of the Act.
The Bench of Justice Vivek Chaudhary stressed that the Act cannot be given an interpretation that would defeat the very purpose of the Act, which is to promote equality and respect for transgender persons.
In conclusion, the petitioner has now been permitted to apply under Section 7 of The Transgender Persons (Protection of Rights) Act 2019 before the District Magistrate. The District Magistrate will ascertain the facts of the gender re-assignment and issue the required certificate to the petitioner within 60 days. Based on this certificate issued by the District Magistrate, the petitioner can approach the authorities concerned for changing her educational records and issue her fresh changed mark sheets and certificates.
Karnataka HC: In the heinous offence of rape, proceedings cannot be quashed even if parties have reached a settlement.
In the case Anil S/o Venkappa Kushalkar vs. the State of Karnataka, the Karnataka high court has held that in a case of a heinous offence of rape, even if the parties have settled the dispute, the same cannot be accepted and the proceedings cannot be quashed since it will have a serious impact on the society.
The high court was hearing the petitioners seeking to quash proceedings pending before the Additional Sessions Judge, Vijayapur, under Sections 366 and 376 of IPC and Sections 12, 5(L), 5(J)(II) and 6 of the Protection of Children from Sexual Offences Act (POSCO), 2012.
In the present case, as per the police complaint lodged in 2019, the accused Anil Khushalkar had committed rape on a minor girl, who later became pregnant. Thereafter, he kidnapped the victim and took her to Kolhapur.
The Counsel for the Petitioners submitted that the accused and victim have married, and they have a child. The victim was examined before the Court, but she did not support the prosecution’s case. It was argued that the victim has turned hostile, and no purpose would be served in continuing the proceedings against the accused.
Further, the Counsel for petitioners has deposed before the Trial Court that she was aged 19 years at the time of the incident.
The bench of Justice HP Sandesh held that whether she was minor or major has to be adjudicated before the trial Court. The bench observed that due regard has to be given to the nature and gravity of the crime and its social impact. Therefore, the matter requires to be tried before the Trial Court as the accused has committed offence of rape against a minor girl which attracts the provisions of IPC and POCSO Act.
In conclusion, the petition was dismissed, directing the Trial Court not to be influenced by the observations made by the high court while passing the order.
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Review: SC Notes That Lengthy Elaboration of Evidences is Not Required at The Stage of Granting or Rejecting Bail/Anticipatory Bail
Sai Krishna Muthyanolla
May 10, 2023
In this edition of court judgements review, we look at the Supreme Court’s judgements that a chargesheet filed without sanction of a competent authority cannot be considered an incomplete chargesheet if it was filed well within the prescribed time, that lengthy elaboration of evidences is not required at the stage of granting or rejecting a bail/anticipatory bail, and that mining activity will not be permitted in ESZs even if it is more than one kilometre away from protected forests or national parks.
SC: A chargesheet filed without sanction of a competent authority cannot be considered an incomplete chargesheet if it was filed well within the prescribed time
In Judgebir Singh @ Jasbir Singh @ Jasbir and others vs. National Investigation Agency, the Supreme Court was hearing appeals against an order of the Punjab and Haryana High Court that refused to release persons accused under the Unlawful Activities (Prevention) Act on default bail under Section 167(2) of CrPC. Section 167 of CrPC deals with the procedure to be followed when a person is arrested and detained by the police. The purpose of the section is to ensure that the investigation is completed within the stipulated period. It also allows ‘default bail’ by which an accused person may be released on bail if the investigation is not completed within the said time period.
In this case, the appellants contended that even though the chargesheet was filed within the statutorily prescribed period of 180 days, it was filed without the sanction of a competent authority which made the chargesheet incomplete. This was also as good as saying that no chargesheet was filed by the investigating agency within the statutory time period as prescribed in law, according to the appellants. The Supreme Court bench of CJI DY Chandrachud and Justice JB Pardiwala dismissed the bail plea citing that an accused is not entitled to default bail if an investigation agency files a chargesheet within the said time limit but without sanction for prosecution. The Bench added that whether or not the sanction is required is a question to be asked when taking cognizance of an offence and not during the investigation.
SC: Lengthy elaboration of evidences is not required at the stage of granting or rejecting a bail/anticipatory bail
The case Sumit Subhaschandra Gangwal vs. State of Maharashtra is an appeal to the Apex Court following the rejection of the appellant’s anticipatory bail by the High Court. While rejecting the plea, the High Court also issued an order running into 13 pages. The Supreme Court Bench of Justices B R Gavai, Vikram Nath and Sanjay Karol noted this and stated that detailed elaboration of evidence was to be avoided at the stage of grant/rejection of bail/anticipatory bail. The bench also noted that the Single Judge of the High Court had pronounced the order after a period of one month and one week. The Supreme Court Bench observed that the Court should act promptly in matters pertaining to the liberty of citizens. The inordinate delay in passing an order pertaining to the liberty of a citizen is not in tune with the constitutional mandate, the Bench added.
The Supreme Court had earlier granted the appellant an ad interim protection observing the following:
However, the latest order made this order absolute on the grounds that the petitioner’s custodial interrogation would not be necessary for the offences alleged.
SC: Secretary (Home) does not have the authority to order further investigation into a case being handled by another agency
In the case, Bohatie Devi (Dead) through LR vs. the State of Uttar Pradesh & Ors., the appellant’s son was murdered by unknown persons.  An FIR was lodged by the son-in-law of the appellant against Anju and two unknown persons. The investigation was carried out by the Inspector of Police, Baraut, District Baghpat who submitted a chargesheet on 01 March 2015 against two persons of which cognizance was taken by the Magistrate later that month. The investigation was later transferred to the District Crime Branch and a supplementary charge sheet was filed in December 2016 against two accused persons. In 2018, a non-bailable warrant was issued against one of the accused.
The mother of the accused moved an application in January 2019 to the Secretary (Home), State of Uttar Pradesh to transfer the investigation to CBCID on the ground that the accused was called to the Court based on statements of two witnesses who were imprisoned and that their statements cannot be believed. The Secretary (Home) ordered a further investigation by CBCID. This order was challenged in the Allahabad High Court which dismissed the same observing that further investigation was ordered after intimation to the Magistrate and hence, the order passed by the Secretary (Home) directing further investigation was valid.
The decision of the High Court was challenged in the Apex Court. The Supreme Court bench of Justice M R Shah and Justice C T Ravikumar observed that the transfer of the case here was not a matter of further investigation but reinvestigation by another agency. The Supreme Court also said that reinvestigation of an offence by a different investigating agency without prior approval of the Magistrate concerned is not possible. Quashing the High Court’s decision and allowing the appeal, the Supreme Court added that under CrPC, the Police Officer of the concerned Police Station, who is the investigating officer, has to investigate/further investigate the case under the supervision of Superintendent of Police and the Secretary (home) does not come into the picture at all.
SC: Mining activity will not be permitted in ESZs even if it is more than one kilometre away from protected forests or national parks
In an order dated 28 April 2023, the Supreme Court clarified its order dated 26 April 2023 with respect to Eco-Sensitive Zones and mining in such areas in T N Godavarman Thirumulpad vs. Union of India & Ors. The question raised was if mining activities would be permitted beyond the distance of one kilometre from the boundary of the Protected Area, irrespective of whether such an area falls under the Eco-Sensitive Zone (ESZ) as notified by the Environment Ministry (MoEF&CC).
The Supreme Court Bench comprising of Justices BR Gavai and Vikram Nath clarified that though the Court had prohibited mining activities within one kilometre from boundaries of national parks and wildlife sanctuaries in Goa, it has now made the rule applies across the country. Further, the Bench stated that even if in a particular case, the ESZ is more than one kilometre, if the concerned area where mining is proposed falls within the ESZ, the mining activity will not be permitted, even if it falls in an area which is beyond one kilometre from the boundary of the Protected Area. In short, mining would not be allowed in an ESZ even if it is more than one kilometre away from a Protected Forest to protect the flora and fauna.
SC: Issues raised in suit went beyond the license agreement because of which the application under Section 8 Arbitration & Conciliation Act was rejected
In Gujarat Composite Limited vs. A Infrastructure Limited & Ors, the appellant had entered into a license agreement with the ‘A Infrastructure Limited,’ for licensing the operation of the manufacturing units of the appellant. The respondent also advanced a sum to the appellant, as financial assistance as per the terms of the license agreement. Following disputes between the parties, the respondent had asked the appellant to extend the license agreement as they could not pay dues to the former. However, the appellant company rejected the request and issued a notice claiming recovery of the possessions of the company on the grounds that the license had expired without any extension. Gujarat Composite Limited also invoked the arbitration clause in the agreement while ‘An Infrastructure’ filed a commercial civil suit before the Commercial Court seeking dues from the former.
Gujarat Composite filed an application under Section 8 of the Arbitration & Conciliation Act in the suit, seeking a reference of the dispute to arbitration. However, the commercial court dismissed the same citing that a partial reference to arbitration was not possible because the cause of action could not be split into separate parts. The consumer court also noted that some issues raised in the suit were not related to the license agreement. Further, it noted that the issue of mortgage was not arbitrable and that the challenge to the Conveyance Deed and relief sought against the bank to not release documents in favour of Gujarat Composite, was only capable of adjudication by the Courts and not by the arbitrator. This decision of the Commercial Court was upheld in the Gujarat High Court. Noting the same, the Supreme Court Bench of Justices Dinesh Maheshwari and Sudhanshu Dhulia dismissed the appeal.

source: news-factly

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author: Sai Krishna Muthyanolla


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SC notes is not an ordinary measure and must be resorted to sparingly
Sai Krishna Muthyanolla
February 2, 2022
In this roundup of Court Judgements, we look at the Supreme Court’s observations & directions on why the order of externment is not an ordinary measure and must only be used sparingly, about states responsibility to collect quantifiable data regarding inadequacy of representation of SCs and STs before providing reservations in promotions, on how the gravity and nature of the offences alleged against the accused are important factors while considering bail application, etc.
SC: Order of externment is not an ordinary measure and must be resorted to sparingly and in extraordinary circumstances
In Deepak S/o Laxman Dongre vs. State of Maharashtra, the appellant who was a resident of District Jalna, Maharashtra was directed to remove himself outside the limits of the district within 5 days for a period of two years. The order was passed by the competent authority invoking the powers under Maharashtra Police Act, 1951 on grounds that the appellant’s activities were very dangerous and the offences registered against him under the Indian Penal Code (IPC) were of a grave and serious nature which caused disturbance to the public at large. The order was challenged in the High Court which dismissed the petition.
While hearing the appeal, the Supreme Court (SC) Bench comprising Justices Ajay Rastogi and Abhay S. Oka observed that the effect of the order of externment is of depriving a citizen of his fundamental right of free movement throughout the territory of India. Therefore, the restriction imposed by passing an order of externment must stand the test of reasonableness. Earlier, the Court had held that the reasons which necessitate or justify the passing of an extraordinary order of externment arise out of extraordinary circumstances. The Bench also stated the following:
Furthermore, the Bench observed that there must be objective material on record based on which the competent authority must record its satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger, or harm to persons or property.
Noting the facts of the case, the Bench stated that non-application of mind is apparent on the face of the record and that the orders were passed casually in a cavalier manner. Considering that the competent authority passed an order for the maximum permissible period of two years, the Court added that the order of externment must disclose an application of mind and must record its subjective satisfaction about the necessity of passing such an order. Stating that the High Court did not notice that an order of externment is not an ordinary measure, and it must be resorted to sparingly and in extraordinary circumstances, the Supreme Court quashed the order of externment and the High Court’s judgment.
SC: States should collect quantifiable data regarding the inadequacy of representation of SCs and STs before providing reservations in promotions
In Jarnail Singh vs. Lachhmi Narain Gupta and Other Connected Matters, the Supreme Court Bench of Justices L Nageswara Rao, Sanjiv Khanna and B R Gavai heard a clutch of petitions arising out of judgments from different high courts pertaining to reservation policies since 2010.
The Court held that there was no fixed yardstick to identify equality, justice and efficiency which are variable factors, and it depends on the facts and circumstances of each case. Citing past cases, the Court stated that no yardstick can be laid down by it for determining the adequacy of representation of SCs and STs in promotional posts for providing reservation. The Court also held that it is for the State to assess the inadequacy of representation of SCs and STs in promotional posts, by considering relevant factors and that the Court is not persuaded to express any opinion.
The Court mandated that before providing for reservation in promotions to a cadre, the State should collect quantifiable data regarding the inadequacy of representation of SCs and STs. Further, it added that the collection of the said information should be relatable to the grade/category of posts to which promotion is sought and not the entire service or ‘class’/’group’ or else it would be meaningless. Cadre is defined as-
Furthermore, the Court observed that almost all parties had unanimously asked for a periodical review of the concerned data which the Court upheld. However, the Court refused to set out a time period and left it for the Government to decide.
SC: Gravity and nature of the offences alleged against the accused are important factors while considering the bail application
In Manno Lal Jaiswal vs. State of Uttar Pradesh, the appellant’s son was killed by the accused persons named in the FIR by attacking him with a sword, hockey stick, and rod.  Noting this, the Sessions Court rejected the bail application. However, the accused persons moved the High Court to release them on bail. Applying wrong facts, the High Court released them on bail. The complainant, the father of the deceased then appealed to the Supreme Court.
The Supreme Court bench comprising Justices MR Shah and Sanjiv Khanna observed that the High Court had applied wrong facts and that it had not taken into consideration the gravity and nature of offences committed by the accused. Noting that the High Court had not at all adverted (referred) to the relevant facts and/or considerations while granting bail, the Bench also stated the following,
The Apex Court reiterated that the relevant considerations while considering a bail application are
The High Court’s orders were quashed by the Court based on these factors.
SC: Merely because there was no major loss does not mean that leniency must be shown for driving under the influence of alcohol
In Brijesh Chandra Dwivedi (Dead) & Thr LRs vs. Sanya Sahayak & Ors, the appellant was a driver posted at the 12th Battalion, Provincial Armed Constabulary (PAC) at Fatehpur. While he was on duty, he drove a truck carrying the PAC personnel on Kumbh Mela Duty, which met with an accident with a jeep. On medical examination on the same day, it was found that he drove the truck under the influence of alcohol and caused the accident. A departmental enquiry was held, and the Inquiry Officer proposed punishment of dismissal. A second show-cause notice was issued by the Disciplinary Authority and after considering his reply, the punishment of dismissal was awarded.
This decision was challenged before the High Court with the argument that the punishment of dismissal is disproportionate to the misconduct proved.  The High Court dismissed the writ petition stating that in the facts and circumstances of the case, a punishment of dismissal cannot be said to be disproportionate to the misconduct committed. Dissatisfied with the High Court’s decision, the appellant challenged the decision before the Supreme Court. However, during the pendency of the proceedings, the driver died, and his heirs were then brought on record.
A bench comprising Justices M R Shah and B V Nagarathna observed that driving a truck carrying PAC personnel under the influence of alcohol is a very serious misconduct and such an indiscipline cannot be tolerated and that too in the disciplined Military. The Bench said that merely because there was no major loss and it was a minor accident, it cannot be a ground to show leniency. Further, the Bench stated that driving a vehicle under the influence of alcohol is not only a misconduct but is also an offence. It added that nobody can be permitted to drive the vehicle under the influence of alcohol and that such a misconduct of driving a vehicle under the influence of alcohol and playing with the life of others is a very serious misconduct.
Further, the Bench considering the statement of the employee that he had consumed alcohol after the accident to suppress the fear, the punishment of dismissal was said to be too harsh and directed that the case may be treated as one for compulsory retirement.
SC: Equal Pay for Equal Work is not a fundamental right vested in any employee
In State of Madhya Pradesh vs. RD Sharma, a writ petition was filed in the High Court by R D Sharma, who had retired from the post of Principal Chief Conservator of Forest (PCCF) seeking revision of his pension from Rs. 37,750/- to Rs. 40,000/- as per the Indian Forests Service (Pay) Second Amendment Rules, 2008. The representation was rejected by the Department of Pension and Pensioners Welfare, and the Central Administrative Tribunal of Madhya Pradesh while the High Court of MP held that he was eligible for the pension of Rs. 40,000 at par with the other officers as per the 2008 Rules.
The State then filed an appeal in the Supreme Court. The Bench comprising of Justices DY Chandrachud and Bela M. Trivedi observed that the High Court had misdirected itself by applying the principle of “equal pay for equal work”. The Bench added that the equation of post and determination of pay scales is the primary function of the executive and not the judiciary. The task of job evaluation is generally left to the expert bodies like the Pay Commissions which takes into consideration various factors such as the relevant data and scales for evaluating performances of different groups of employees.
Quashing the High Court’s decision, the Supreme Court reiterated that “equal pay for equal work” is not a fundamental right vested in any employee, though it is a constitutional goal to be achieved by the Government. Additionally, the Bench noted that the Tribunal had rightly rejected the claim made by the appellant and that the Tribunal had not committed any jurisdictional error, nor any failure of justice had occurred. It noted that the interference of the High Court in an order passed by the Tribunal was unwarranted.
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SC notes that Section 498A is increasingly being used to settle personal scores against husband and his relatives
Sai Krishna Muthyanolla
February 16, 2022
In this roundup of Court Judgements, we look at the Supreme Court’s observations & directions about how the abhorrent nature of the crime should not be solely considered for capital punishment, and other mitigating factors should be considered, that there should be factual evidence for FIR allegations, how section 498A is increasingly being used to settle personal scores against husband and his relatives, that age of deceased should be the basis for calculation of compensation in a motor accident, etc.
SC: Abhorrent nature of the crime should not be solely considered for capital punishment, other mitigating factors should be considered
In Pappu vs. State of UP, the appellant was convicted by Trial Court in 2016 for raping and killing a seven-year-old girl and hiding her body. The Additional Sessions Judge noting the heinous nature of the crime committed did not find any reason to show any mercy in punishment and awarded varying punishments, including that of death sentence for the offence under Section 302 IPC. While hearing the case for confirmation of death sentence and the appeal filed by the accused, the Allahabad High Court stated that the case was ‘rarest of rare case’, where the sentence of death was considered ‘eminently desirable’, taking into consideration the brutality of the act. The High Court dismissed the appeal and confirmed the death sentence awarded by the Trial Court.
The Supreme Court Bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar when hearing the appeal, noted that both the Trial Court and the High Court looked into the abhorrent nature of the crime and its repulsive impact on the society for confirming the death sentence. The SC noted that, however, both the Courts did not consider the mitigating factors and the option of any other punishment other than the death sentence. It disapproved of the approach of both the Courts to award punishment.
The Bench noted that the appellant had no criminal antecedents, hailed from a very poor socio-economic background, had a family comprising of wife, children, and aged father, and unblemished jail conduct. It stated that the possibility of reformation and rehabilitation cannot be ruled out and commuted the appellant’s death sentence to an imprisonment for 30 years without premature release or remission.
MP High Court: Issued contempt notice to prosecutrix and father for obtaining abortion order by filing false rape case resulting in the death of an unborn child
In Sonu Parihar alias Nathu vs. State of MP and Anr., the Madhya Pradesh High Court expressed that “the case in hand depicted the very shocking state of affairs”. A writ petition was filed by the father of the Prosecutrix for medical termination of pregnancy of his daughter stating that she was a minor of 16 years and that she was subjected to rape. Citing this, he claimed that she got pregnant and wanted to terminate it.
The Applicant who was alleged of rape and later arrested, filed an application with the High Court which noted that the Prosecutrix had turned hostile. She claimed that she was major, and no offence was committed with her. Even her father had not disclosed her date of birth. The Trial Court had permitted medical termination of pregnancy considering that she was a minor. The High Court noted that she had narrated a false narrative and her father had filed a writ petition on false averment. The High Court stated that an unborn baby was killed because of this and that the conduct of the prosecutrix and her father could not be tolerated. It directed the office to register a case for Contempt of Court against them.
SC: There should be factual evidence for FIR allegations
In Shafiya Khan @ Shakuntala Prajapati vs. State of UP, the appellant approached the Supreme Court against the Allahabad High Court’s dismissal of a petition filed under Section 482 CrPC seeking quashing of FIR filed against her. The appellant’s brother-in-law had filed a case alleging that she harassed his late brother mentally and physically which was the reason behind his death. Following the death, the accused (appellant) threatened and abused the family members and got a job on compassionate grounds and took all the terminal benefits, according to the brother. She approached the Supreme Court stating that there is no evidence to support the allegations against her, based on which the FIR was registered.
Citing the judgment in State of Haryana and Others vs. Bhajan Lal and Others, the Supreme Court Bench of justices Abhay Rastogi and Abhay S Oka quashed the proceedings against the appellant since there was no material placed on record by the brother-in-law (complainant) to justify the allegations which were made in the complaint based on which an FIR was registered. It added that there should be some factual supporting material for what has been alleged in the FIR. The Bench stated that continuing the proceedings would be an abuse of the process of law and mental trauma for her, which has been overlooked by the High Court. It also stated that the power of quashing criminal proceedings should be exercised very sparingly and cautiously, in rarest of rare cases. Further, it stated that the inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancies.
SC: Section 498A is increasingly being used to settle personal scores against husband and his relatives
In Kahkashan Kausar @ Sonam vs. State of Bihar, the wife lodged a criminal complaint against her husband and the appellants before the Court of Chief Judicial Magistrate, Purnea alleging that they demanded dowry and harassed her. The husband and his relatives filed a criminal writ petition before the Patna High Court, for quashing the FIR lodged by the wife. The Patna High Court dismissed their petition and called for an investigation by police. Dissatisfied with the order, they filed an appeal at the Supreme Court on grounds that the FIR had been made by the wife with a revengeful intent, merely to harass them. The issue before the Supreme Court was whether allegations made against the appellants are general omnibus allegations that are liable to be quashed.
The Bench of Justices S Abdul Nazeer and Krishna Murari before moving into the details of the case stated that the purpose of section 498A of IPC was to prevent cruelty inflicted upon a woman by her husband and in-laws, by facilitating rapid state intervention. They also noted that with the rising matrimonial litigations in the country, there has also been an increased tendency to misuse the provisions like this, to settle personal scores against the husband and his relatives.
Referring to previous judgements, the Bench stated that the Court had expressed its concern over the misuse of the legislation multiple times previously, and so if it is left unchecked, it would result in the misuse of the process of law. The Court warned that courts should not carry out proceedings against the relatives and in-laws of the husband when no prima facie case is made out against them. That is, there should be sufficient proof or specific allegation for the proceedings to take place.
In this case, going through the FIR, the Bench noted that there was no distinct or specific allegation made by the wife and hence allowed the appeal by quashing criminal proceedings against the appellants stating that the allegations were general and omnibus and were made because of small clashes between them. It highlighted that a criminal trial that leads to eventual acquittal inflicts severe scars upon the accused which should be discouraged.
SC: Age of deceased should be the basis for calculation of compensation in a motor accident
In R. Valli vs. Tamil Nadu State Transport Corporation Ltd., a 54-year old succumbed to head injuries in 2011 when he was riding a two-wheeler and met with an accident with the TNSTC’s bus. Based on his income and age, the Motor Accident Claim Tribunal, Chennai awarded a compensation of Rs.13,82,628. The Madras High Court asserted the findings recorded by the Tribunal in respect of multiplier of three (3) up to the date of superannuation and thereafter multiplier of eight (8) keeping in view the dependency of life for 10 years (Rs. 15,12,628 was to be awarded to the claimants) when hearing the appeal by the claimants.
The appeal was then filed with the Supreme Court on grounds that the multiplier methodology adopted by the Tribunal and the High Court was erroneous and not sustainable. It argued that the remaining years of service were not considered but only the age and income at the time of death were taken into consideration.
Referring to past judgement, the Apex Court Bench comprising Justices Hemant Gupta and V. Ramasubramanian held that the age of the deceased should be the basis for applying the multiplier and the method using two multipliers was erroneous.
The Bench allowed the appeal and held that the claimants were entitled to a compensation of Rs. 24,33,064 with an interest of 9% from the date of filing of the claim application till realization.
SC: OCI students should be treated on par with Indian students for any course in 2021-22
The Supreme Court Bench comprising Justices Abdul Nazeer and Krishna Murari allowed the petitioner, an OCI student, to be treated at par with her Indian counterparts and allowed her to apply for Bachelor of Ayurvedic Medicine and Surgery (BAMS) course in general category seats for the academic year 2021-22. It stated that Overseas Citizens of India (OCI) are to be treated at par with Indian students and be allowed to apply in general category seats in any courses, for the academic year 2021-2022. This order came as a result of a petition filed against IIT Madras which charged different fees for OCI students and Indian students. Earlier, the Court had asked the respondent (IIT Madras) to consider the petitioner at par with the Indian citizens regarding the fee charged.
Featured Image: SC on the usage of Section 498A

created: February 16, 2022


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Review: SC Observes That Courts Must Consider Factors Such as Nature and Gravity of Offences When Considering Applications for Anticipatory Bail
Sai Krishna Muthyanolla
July 12, 2023
In this edition of court judgements review, we look at Supreme Court’s judgement on Anticipatory bail, sexual assault on children, Kerala High Court’s decision on Stalking, Delhi High Court’s judgement on invocation of Protection of Women from Sexual Harassment Act, 2013, Jammu & Kashmir High Court’s judgement on abetment to suicide and Madras High Court’s judgement on ‘Authorized Officer’ under Mines and Minerals Act.
Supreme Court: When considering applications for anticipatory bail, courts should also consider factors such as the nature and gravity of the offences, and the specific facts of the case.
In Pratibha Manchanda vs. State of Haryana, the Supreme Court held that the relief of anticipatory bail presents challenges in maintaining a delicate balance between individual rights and the interests of justice, and the courts should strike a balance in protecting public interests as well as safeguarding individual rights.
The two-judge bench of the apex court comprising of Justice Surya Kant and Justice C.T. Ravi Kumar was hearing an appeal against the judgement of the High Court of Punjab and Haryana that allowed anticipatory bail to the accused against whom charges of forging documents to illegally transfer the ownership of land worth crores of rupees were framed. The additional sessions judge declined the bail plea, while the High Court allowed the anticipatory bail subject to the fulfilment of certain conditions.
The apex court, after careful consideration of both sides, held that offences of forging documents for transferring ownership of land worth crores of rupees are grave in nature.
The Apex court relied on its earlier judgement in Sushila Aggarwal vs. State (NCT of Delhi), whereby it was held that when considering applications for anticipatory bail, courts should consider factors such as the nature and gravity of the offences, the role attributed to the applicant, and the specific facts of the case. Further,
Upon looking at the facts of the case, the apex court highlighted the dubious nature of this transaction, casting a shadow over its legitimacy. The court further talked about how land scams are becoming persistent, which not only results in financial losses to individuals but also hinders socio-economic progress. It felt that an unimpaired and unobstructed investigation is necessary to unearth any such land mafia.
While refusing to interfere in the exercise of judicial discretion by the High Court, it cautioned the High Court to exercise this in accordance with the fundamental principles of anticipatory bail laid down in various decisions over time by this Court.
Accordingly, the appeal is allowed, and the decision of the High Court is set aside.
Supreme Court: Penetrative sexual assault on a child below twelve years comes under ‘Aggravated Penetrative Sexual Assault.’
The Supreme Court, in State of U.P. vs. Sonu Kushwaha, held that penetrative sexual assault against a child under twelve years of age comes under Section 5 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012) and held that courts cannot impose lesser than the minimum sentences prescribed in the act.
The two-judge bench of the apex court comprising of Justice Abhay S Oka and Justice Sanjay Karol was hearing an appeal by the state against the judgement of Allahabad High Court that reduced the substantive sentence of the accused to seven years from the earlier ten years. The question of the appeal in the apex court is only whether the respondent is guilty of an offence of aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act.
Section 3 of the POSCO Act defines ‘Penetrative Sexual Assault’ and section 4 prescribes punishments for the same.
In this case, the High Court recorded the findings that the accused put his penis into the mouth of the victim aged about 10 years and discharged semen therein. This was not challenged by the accused. Accordingly, the High Court concluded that the act was of penetrative sexual assault and prescribed a punishment under section 4 of the act.
From clause (m) of Section 5 of the POCSO Act that defines the situations which can be considered as ‘Aggravated penetrative sexual assault’, it is clear that penetrative sexual assault on a child below twelve years comes under the definition of ‘aggravated penetrative sexual assault’.
Section 6 of the same act prescribes the punishment for the same.
The apex court held that the High court in this case erred by holding that the act committed by the respondent was not an aggravated penetrative sexual assault. The apex court further talked about the intent behind the POCSO Act and held that there is no provision to impose lesser punishments under the said act.
Accordingly, the judgement of Allahabad High Court is set aside, and the appeal is allowed.
Kerala HC: A threat or abuse by a man towards a woman would not attract the offence of stalking, intent “to foster personal interaction despite a clear indication of disinterest” is an essential ingredient.
In Jayaprakash P.P vs. Sheeba Revi, the Kerala High Court held that in order to attract Section 354-D(1)(i) of IPC, the prosecution has to establish that a man followed a woman and contacted or attempted to contact her to foster personal interaction repeatedly despite a clear indication of disinterest by such woman. The section takes in acts revealing sexual interest or lewd acts of man. Acts of mere threats or abuse do not attract the offence of stalking.
The single-judge bench of Justice K Babu was hearing an appeal to quash the final FIR report and other such proceedings filed against the appellant. In this case, the petitioner worked as an Assistant Zilla Sainik welfare officer at Zilla Sainiks. He was accused of repeatedly calling and threatening the Zilla Sainik Welfare Officer. It is further argued that the accused intentionally tried to annoy her by sending her WhatsApp messages. He is charged under IPC Sections 354D (stalking) and 509 (insulting a woman’s modesty).
The counsel for the appellant argued that the ingredients for attracting Section 354D of IPC were absent in the allegations levelled against the accused whereas the counsel for the respondent contended that repeated attempts to contact a woman over the phone or in any other manner attract the offence under Section 354-D of the Indian Penal Code.
Upon hearing both sides, the apex court looked at the history of section 354D of IPC. It was added based on the report of the committee on amendments to the criminal law headed by Justice J.S. Verma. The section 354D reads as below.
The court held the intention behind the legislation is to implicate those who maintain “behavioural patterns” of sexual offenders and not to be misused. The relevant extract of the parliament debate is as below.
The court observed that the essential ingredient to attract section 354D of IPC is “to foster personal interaction despite a clear indication of disinterest” by the woman. The court further relied on the judgement in Singaraju Somasekhar vs. State of Telangana, whereby it was held that,
Further, the petitioner also faces a charge under Section 509 of IPC, which deals with “Word, gesture or act intended to insult the modesty of a woman”.
The court relied on Ramesh v. Sub Inspector of Police, whereby it was held that to attract section 509 of IPC, a definite allegation of insult to the modesty of women or intrusion to the modesty of women or intrusion to the privacy of women must be present. The test of the outrage of modesty must, therefore, be whether a reasonable man will think that the act of the offender was intended to or was known to be likely to outrage the modesty of the woman. In this case, no evidence can be made out based on the allegations in FIR.
Relying on the judgement in State of Haryana and Others vs. Bhajan Lal and Others on the exercise of the extraordinary powers under Article 226 of the Indian Constitution, the High Court quashed the proceedings in this case.
Delhi HC: The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (SHW Act), is also applicable when the victim and delinquent employee are employed in different departments/office.
In Dr Sohail Malik vs. Union of India & Anr, the Delhi High Court held that there is nothing specific in the SHW Act that limits its scope to cases where the victim and delinquent employee work together. It is applicable to cases where the workplaces of victim and delinquent employees are different.
A two-judge bench comprising of Justice C. Hari Shankar and Justice Manoj Jain was hearing a plea filed by an Indian Revenue Service (IRS) officer who was accused of sexually harassing an officer from another department. The IRS officer sexually harassed the women employee and when the employee filed an official complaint with the Internal Complaints Committee (ICC) of her department, the ICC summoned the IRS officer asking him to appear. These summons were challenged before the Central Administrative Tribunal (CAT) questioning the jurisdiction of the ICC. The CAT dismissed the officer’s plea, and hence this writ petition.
The petitioner’s counsel argued that both employees are governed by different service rules and the report of ICC is to be submitted to the employer, in this case, the head of the department of the victim, who has no disciplinary control over the petitioner. On being questioned by the court if the inquiry can be conducted by any other ICC, the counsel for the petitioner pointed out that the provisions of the SHW act are silent in this regard.
Upon careful consideration of the submissions by the petitioner, the court, relying on the principles laid in Shailesh Dhairyawan vs. Mohan Balkrishna Lulla, held that the rule of ‘purposive construction’ has replaced the rule of the plain meaning of the statute as the ―’golden rule’ of interpretation of statutes.
Placing reliance on this, the court further held that any interpretation which would dilute, or defeat, the purpose of the legislation, which is to ensure a safe working environment for women has, therefore, to be sedulously eschewed.
The court further relied on the preamble of the SHW Act.
Applying the judgement in the Shailesh Dhairyawan case, any interpretation of the provisions of the SHW Act, which downplays, or impedes the complete achievement and implementation of, one or more of these objectives, has to be firmly eschewed. Such an interpretation would, in our considered opinion, would strike at the very root of the SHW Act, and its ethos and philosophy.
Further, the petitioner’s narrow interpretation of the definition of ‘employer’, ‘workplace’ under section 2 of the act as a challenge to question the jurisdiction is struck down.
Accordingly, the court held that there is absolutely nothing, in the SHW Act, which limits its scope only to cases where a woman employee is sexually harassed by another employee working in her own office and accepts its application where the delinquent employee is employed elsewhere. The court agreed with the findings of the learned tribunal, and the writ petition stands dismissed.
Jammu and Kashmir and Ladakh HC: Mere harassment of a wife by her husband or in-laws due to matrimonial discord or sarcastic remarks per se does not attract Section 306 IPC
The Jammu and Kashmir and Ladakh High Court, in the State of J&K vs. Tariq Hussain, held that in order to attract provisions of Section 306 of the IPC, intentional aid and active participation of the abettor must be established. Mere matrimonial discords or sarcastic remarks themselves do not attract the provisions of section 306 of the IPC.
A single-judged bench comprising of Justice Rajesh Sekhri was hearing an appeal against the judgement of the Additional Sessions Judge whereby the accused has been acquitted of charges under sections 306 and 498A of the IPC. The brief facts of the case are as follows. The victim and her husband were married for more than two years but had not been able to conceive. They were living separately. Her husband had gone out for labour, who gave her a phone call at 12 o’clock in the night, she requested him to come back but he refused and asked her to go from where she had come. This annoyed the complainant. She doused kerosene oil and set herself ablaze. The victim in her statement mentioned that her husband is responsible for her to take such an extreme step. The trial court has observed that it is a case of suicide and therefore, the husband was acquitted of the charges. This is an appeal against this decision.
Section 306 of IPC is as below.
Upon a bare perusal of sections 107 and 108 of the Ranbir Penal Code (RPC) relating to abetment and abettor, it is clear that to constitute the abetment of an offence, intentional aid and active participation of the abettor must be established. In other words, the prosecution is obliged to prove the intentional aid and active participation of the abettor. Any consequence of cruelty, which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb, or health, whether mental or physical of the woman, is required to be established in order to attract the provision of abetment to suicide. Considering the material facts in this case, the ultimate decision taken by the victim in the present case cannot be said to have a direct nexus with the alleged acts committed by the accused.
On the charges of dowry, the court held that mere harassment or mere demand of dowry by itself is not cruelty. A reasonable nexus has to be established between the cruelty within the meaning of explanation (a) of Section 498-A and the suicide within the meaning of Section 306 IPC. Further, the court held that,
Accordingly, the appeal is dismissed and the impugned judgment is upheld.
Madras HC: Police personnel comes within the ambit of “authorised officer empowered” u/s 21 (4), 22 and 23-A of the Mines and Minerals (Development and Regulation) Act, 1957.
In S Kumar vs. The District Collector and others, the Madras High Court held that police personnel comes within the definition of ‘authorized officer’ under Mines and Minerals (Development and Regulation) Act, 1957 and has the power to seize vehicles and compound offences. The Government Orders regarding the same are well within the powers and jurisdiction of the state government.
The full judge bench of the High Court was hearing the questions of law referred to it by the division bench of the High Court. Initially, a writ petition was filed by S Kumar to direct authorities to permit him to continue his crusher operation and to take back his vehicles. When the division bench heard the matter, it was unclear as to which authority has power to seize vehicles under the Act. Section 21(4) of the Act empowers an officer or a specially empowered authority to seize any mineral tool, equipment, vehicle, or any other thing which is used for transporting any mineral unlawfully.
The court held that the statute and subsequent rules must be interpreted harmoniously for the realization of the objectives of the said statute. Accordingly, the extension of power to police personnel by the state government is valid.
When the State Government, conscious and in the exercise of its powers u/s 15 has authorised the police personnel, not below the rank of Inspectors of Police, to be officers to effect seizure u/s 21 (4) of the MMDR Act, the said action can neither be called to be beyond the powers of the State Government nor could it be said to be arbitrary and illegal.
Regarding the empowerment of the police personnel as “authorised officer” u/s 22 of the MMDR Act for the purpose of filing a private complaint before the Court of competent jurisdiction is concerned, the court relied on the Sanjay and Kanwar Pal Singh cases, whereby it was implied that the power of the police authority to file a private complaint is not only recognized, but also approved.
On the question of Joint trial of offences under the Act and IPC, the court held that the Special Courts constituted under the MMDR Act shall jointly try the offences under the MMDR Act as well as the offence u/s 379 IPC so as to avoid any possible conflict in the decision.
Accordingly, the case is disposed.


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Review: SC observes that similarity in designation or quantum of work does not mean that the pay should be same
Sai Krishna Muthyanolla
July 13, 2022
In this week’s review of Court Judgments, we look at the Supreme Court’s observation that similarity in designation or quantum of work does not mean that the pay should be the same, that the trial and appellate courts have full discretion to order sentences to run concurrently, that electricity is a basic amenity of which a person cannot be deprived, Kerala HC’s order that value of spare parts should also be included in compensation for a motor accident.
SC: The trial and appellate courts have full discretion to order sentences to run concurrently
In Malkeet Singh Gill vs. State of Chhattisgarh, the Director and Area Manager (appellant) of a company is involved in collecting money by deposits and paying an annual interest to the depositors. Though receipts, passbooks, and ledgers were maintained, when the depositor asked for the return of deposits upon maturity along with interest, the Company denied it and closed. The complainant filed a case against the appellants for deceiving him and the public at large under the guise of wrong information, that the Company was recognized by the Reserve Bank of India (RBI). The Trial Court convicted the accused persons for the charges under Sections 409, 420, 409 read with 120B and 420 read with 120B of IPC. They were sentenced to undergo rigorous imprisonment of 4 years, 7 years, 1 year and 2 years respectively along with a fine and directed to serve the sentences one after the other. When the matter was taken to the High Court, it directed that the sentences so awarded shall run concurrently.
The appellant approached the Supreme Court stating that the charges for an offence under Sections 420 and 409 of IPC are antithetical to each other, and so he could not be convicted for both charges. He added that he was only an employee and was made a scapegoat for selective prosecution. The Supreme Court Bench of Justices Indira Banerjee and JK Maheshwari dismissed the appeal on grounds that there were concurrent findings of conviction arrived at by two Courts after detailed appreciation of the material and evidence brought on record. With respect to the sentence, the Bench noted that the High Court’s direction was in line with Section 31 of CrPC which gives full discretion to the Trial and Appellate Court to order sentences to run concurrently.
SC: Similarity in designation or quantum of work does not mean that the pay should be the same
In State of MP through Principal Secretary and Ors vs. Seema Sharma, Seema Sharma was appointed as Librarian-cum-Museum Assistant in Government Dhanvantri Ayurvedic College, Ujjain. She claimed the UGC scale of pay as paid to the persons in the senior scale of Librarian in colleges under the Higher Education Department after completing 8 years of service. However, her request was declined by the State Authorities. She then approached the High Court claiming the said relief under the Madhya Pradesh Education Service (Collegiate Branch), Recruitment Rules, 1990. The High Court considered her appeal and directed the authorities that she be paid the UGC scale of pay as paid to the Librarians of colleges under the Higher Education Department.
The authority approached the Supreme Court contending that the 1990 rules were not applicable to her as she was employed under the Ayush Department of the Government of Madhya Pradesh and not the Higher Education Department. Moreover, she was appointed under the Madhya Pradesh Public Health (Indian System of Medicine and Homeopathy), Class III, Clerical and Non-Clerical Services Recruitment Rules, 1987 and not the 1990 Rules.
The Supreme Court bench of Indira Banerjee and JK Maheshwari stated that the judgement on which the single and division bench of the High Court had relied on was not applicable in this case and referred to State of Madhya Pradesh & Ors. vs. Ramesh Chandra Bajpai, 2009 instead. In this case, the respondent had claimed for the UGC Pay Scale. However, the Court had held that the doctrine of equal pay for equal work could be invoked only when the employees were similarly circumstanced in every way. The mere similarity of designation or similarity or quantum of work was not determinative of equality in the matter of pay scales. Further, the mode of recruitment, qualifications for the post, the nature of work, etc. was to be considered. The SC Bench quashed the High Court’s order and allowed the State’s appeal.
SC: Electricity is a basic amenity of which a person cannot be deprived
In Dilip (D) vs. Satish, the tenants filed a petition under Section 17 of the Hyderabad Rent Control Act in the Court of the Rent Controller, Aurangabad, seeking directions from the landlord to provide electricity connection at the said shop. However, the petition got rejected since the shop was running on Petromax since its inception. Following this, the tenant applied for a supply of electricity in his own name based on a “No Objection” letter and got a supply of electricity to the said shop in his own name. However, the appellant filed an FIR that the letter was a fabricated one and signatures were forged. The High Court quashed the FIR noting that the tenant needed electricity for doing this business, but the landlord was not giving a ‘no objection certificate’. The High Court, in its order, stated that the landlord cannot prevent the tenant from availing of such a facility at his own cost. It added that the purpose should be considered first and then the definition of cheating. Moreover, it noted that the false record, if any created, had not caused any harm to the property of a person.
The landowner then approached the Supreme Court. The Supreme Court Bench comprising Justices Indira Banerjee and CT Ravikumar noted that electricity is a basic amenity of which a person cannot be deprived. Furthermore, it cannot be declined to a tenant just because the landlord does not issue a ‘no objection certificate’. The electricity supply authority must verify if the applicant for the connection is in occupation of the premises.
The Bench added that the High Court’s quashing of FIR was erroneous since it cannot be stated that forging/fabrication of documents is not an offence under IPC and allowed the appeal. It also ordered that the electricity supply was not to be discontinued provided they paid the electricity charges.
Kerala HC: Value of spare parts should also be included in compensation
In Thomas vs. R. Murugasamy, the appellant’s vehicle was damaged in an accident in 2009. The question considered by the Kerala High Court was if the reduction was permissible towards the value of spare parts incurred by the claimant on account of the repair of a vehicle damaged in a motor accident. In simpler words, whether the compensation of the insurance company should cover the value of spare parts incurred for repairing the vehicle which was damaged in the motor accident.
Justice Badharudeen who heard the case referred to old cases and stated that the claimant is entitled to compensation for the value of spare parts incurred for repairing the vehicle which was damaged in the motor accident. The order stated that the claimant is entitled to get compensation for actual damages inclusive of the value of spare parts as well and no deduction is liable to be made from the value of spare parts.
Madras HC: Section 33(5) of the POCSO Act gets diluted if the victim becomes a major
In Sankar vs. State in the Madras High Court, the Petitioner was charged for offences under Sections 366 (A) of IPC and Section 5(1), read with Section 6 of the POCSO Act. He filed an application under Section 311 CrPC to recall the victim and her mother to bring forward certain contradictions in their statements that could not be addressed at the time of cross-examination. The trial court allowed the recalling of the mother of the victim and at the same time dismissed the petition for recalling the victim to save her from further harassment.
When the matter was taken to the High Court, Justice V.Sivagnanam noted that the victim was now a major and that the case was filed by the victim’s father due to an alleged love affair between the petitioner and the victim. On these grounds, the order of the Trial Court was quashed and directed that the accused could cross-examine the victim and her mother on the same day so that the accused gets an opportunity to defend herself.
CCPA: Hotels and restaurants cannot levy service charges on consumers by default
According to the Central Consumer Protection Authority (CCPA)’s guidelines for preventing unfair trade practices and violation of consumer rights with regard to levying of service charges in hotels and restaurants, hotels or restaurants shall not add service charges automatically or by default in the food bill. Further, no hotel or restaurant can force a consumer to pay a service charge. It should clearly inform the consumer that the service charge is voluntary, optional and at the consumer’s discretion. There should be no restriction on entry or provision of services on the basis of service charge collection. The service charge shall not be collected by adding it along with the food bill and levying GST on the total amount.
If the guidelines are violated, one can lodge a complaint on the National Consumer Helpline (NCH), which works as an alternate dispute redressal mechanism at the pre-litigation level by calling 1915 or through the NCH mobile app. The consumer can also file a complaint against unfair trade practices with the Consumer Commission. The Complaint can also be filed electronically through the e-daakhil portal or a complaint can be submitted to the District Collector of the concerned district.
Featured Image: Review of Court Judgments


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SC recommends setting up of Motor Vehicle Appellate Tribunals for speedy disposal of accident compensation claims
Sai Krishna Muthyanolla
December 15, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions about an export ban on PPE kits, need for the constitution of Motor Vehicle Appellate Tribunals in the country, NCPCR estimates of orphaned children due to COVID-19, implications of allotment of government land on the basis of discretionary quota.
Supreme Court: Upholds RBI regulations for an export ban on PPE kits; ‘Well-being of masses over Right to Business of few’.
In the case Akshay N Patel vs. Reserve Bank of India (RBI) and others, the Supreme Court upheld the measures adopted by the RBI to implement the ban imposed by the Union Government on the export of Personal Protective Equipment (PPE) Kits in view of the COVID-19 pandemic.
The apex court was hearing a challenge to Clause 2(iii) of the Revised Guidelines on Merchanting Trade Transactions (MTT) (dated 23 January 2020) issued by the RBI in the exercise of its power under Section 10(4) and 11(1) of the Foreign Exchange Management Act 1994. The petitioner is a businessman engaged in manufacturing and trading of pharmaceutical, skincare and PPE products. The petitioner had obtained a contract to serve as an intermediary between the sale of PPE products by a supplier in China to a buyer in the United States. He was denied a letter of credit to execute the MTT contract for the above transaction, in view of the export ban imposed by the Union Government on PPE kits.
The petitioner claimed that the restrictions amounted to a violation of his fundamental right of freedom to trade and business guaranteed under Article 19(1)(g) of the Constitution of India. Earlier, he had challenged the above provisions in Madhya Pradesh high court, which ruled that that ban of export in respect of KN95 Masks, PPE kits and other products does not amount to a violation of the fundamental right and it is a purely policy matter under the ambit of Government of India.
The bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna examined the restrictions on the basis of the “test of proportionality” (evolved in earlier precedents) with the following questions:
The bench observed that the measure by the government & RBI is enacted with a legitimate aim that is of sufficient importance to override a constitutional right of freedom to conduct business. The steps undertaken are also necessary to achieve the objective of ensuring adequate supplies.
The court noted that while the petitioner was an intermediary facilitating the transfer of kits between the USA and China and that the goods were not entering the territory of India, they are still recorded as negative and positive exports from the territory of an intermediary. The bench concluded that the RBI has regulatory powers and has demonstrated a rational nexus in the prohibition of MTTs in respect of PPE products and the public health of Indian citizens.
Therefore, the apex court concluded that the RBI decision was a proportionate measure; and therefore, upheld the RBI regulations for an export ban on PPE kits.
Supreme Court: Recommends constitution of Motor Vehicle Appellate Tribunals in view of large pendency in high courts.
In the case Rasmita Biswal & Ors vs. Divisional Manager, National Insurance Company Ltd & Another, the Supreme Court recommended the constitution of Motor Vehicle Appellate Tribunals in the country by amending Section 173 of the Motor Vehicles Act for hearing appeals challenging the award of a Tribunal.
The apex court was hearing a civil appeal filed challenging the Orissa high court order (dated 07 March 2018), which reduced the compensation payable to family members of the deceased in a motor vehicle accident from Rs. 22,60,000 to Rs. 17,00,000.
The bench of Justice Abdul Nazeer and Justice Krishna Murari recalculated the amount of compensation payable to the appellants as 31,01,000 considering the following:
The bench also took cognizance of the high pendency of motor accident claims appeals before high courts.
In view of the above, the apex court recommended speedy disposal of appeals concerning payment of compensation to victims of a road accident and to curtail the pendency before the high courts. Pertaining to the constitution and composition of such Appellate Tribunals, the bench recommended the following:
9855 Children Orphaned, 132113 Lost Either Parent & 508 Children Abandoned During COVID: NCPCR tells Supreme Court
As per the data uploaded on the Baal Swaraj Portal – COVID care from April 2020 to 7 December 2021, a total of 9,855 children are orphaned, 1,32,113 children have lost either parent and 508 children are abandoned. This aggregate data was presented state-wise for children who have lost either mother or father or both parents after 1 April 2020, irrespective of their reason of death (not only death due to COVID-19).
In compliance with the Supreme Court’s earlier directions with regards to the status of children, the National Commission for Protection of Child Rights (NCPCR) filed an additional affidavit analysing data of children from 19 States/UTs that was available on the Baal Swaraj Portal. About 7,499 letters have been sent to the district authorities for completion of data and removing discrepancies on the portal. In the abovementioned letters, recommendations have been made to the district authorities to link the child and his/her family with the schemes/ benefits for timely financial assistance.
The affidavit also states that as of 8 December 2021, Action-taken Reports have been submitted by only 10 States/ Union Territories. No reports on the actions taken vis-à-vis children orphaned or vulnerable due to COVID-19 has been received from states like Andhra Pradesh, Assam, Dadar & Nagar Haveli, Delhi, Jammu and Kashmir, Ladakh, Mizoram, Maharashtra, and West Bengal.
Supreme Court: Allotment of government land on the basis of discretionary quota inevitably leads to corruption, nepotism, and favouritism.
In the case State of Odisha vs. Pratima Mohanty, the Supreme Court observed that the allotment of public properties on the basis of the discretionary quota has to be done away with.
The apex court was hearing allegations against certain public servants on surreptitiously distributing prime plots in Commercial Complex District Centre, Chandrasekharpur, Bhubaneswar – thereby committing offences under Section 120B IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. These public servants were employed in crucial positions in the Bhubaneswar Development Authority and in the Housing and Urban Development Department, Government of Odisha.
Upon considering all submissions in the case, the Apex court bench noted that this case represents an abuse of the powers by public servants with mala fide intention. They have hatched a criminal conspiracy to allot public property/plots to family members at a throwaway price causing loss to the public exchequer.
The bench concluded that appropriate action has to be initiated against the officials who are prima facie responsible for the illegality in plot allotments to relatives and/or family members resulting in huge loss to the Bhubaneswar Development Authority (B.D.A.) and the public exchequer.
The bench noted that it is time to do away with the allotment of government largess on the basis of discretionary quota as this inevitably leads to corruption, nepotism, and favouritism. Therefore, the apex court emphasised that all allotments of public properties must be transparent, fair, and non-arbitrary. In cases where public land is allotted to a particular class (underserved class) as per a policy decision, it has to be done in strict accordance with guidelines.
Featured Image: Important Court Decisions

created: December 15, 2021


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Review: SC Rules Sports Quota is to Encourage Sports and Sportsmanship in Educational Institutions, Not to Prioritize Academic Excellence
Sai Krishna Muthyanolla
August 17, 2023
In this week’s review of Court Judgments, we look at Supreme Court’s judgments that Sports quota is to encourage sports and sportsmanship in educational institutions and not to prioritize academic excellence, Section 197 of CrPC is not applicable for nationalized bank employee since they need not require a sanction from the government for removal, to threaten a person to withdraw a complaint or FIR or to settle the dispute is not punishable under Section 195A, Bombay HC’s observation that is the statutory duty of municipal bodies to ensure that potholes are filled in.
SC: Sports quota is to encourage sports and sportsmanship in educational institutions and not to prioritize academic excellence
In Dev Gupta vs. PEC University of Technology, the Supreme Court heard an appeal regarding the eligibility marks for sports quota. In this case, the appellant had questioned the imposition of a minimum 75% aggregate marks in the qualifying examination as an eligibility condition for enabling a candidate to claim admission in engineering courses under the 2% sports quota. The Punjab & Haryana High Court rejected his petition, following which he appealed to the Supreme Court.
According to the appellant, the requirement of 75% in the examinations defeated the very purpose of the quota. One cannot expect such a high standard in the academic field from a student associated with sports activities. The college contended that 28 out of 34 students who applied for the 17 reserved seats had fulfilled the eligibility criteria. Further, the allocation for admission to the seats was almost complete with only one seat remaining.
The division bench of Justices S Ravindra Bhat and Aravind Kumar observed that the objective of the sports quota was to promote and encourage sports, and sportsmanship in educational institutions, universities and in the country. It was not for accommodating academic merit. Referring to universities as the catchment for sportspersons, who can represent in state, national, international level and Olympic sports, the Bench held that the 75% marks eligibility criteria was a discriminatory practice and violation of Article 14 of the Constitution. It added that the states or universities may prescribe a certain minimum standard set of criteria for admission, but it should not be against the purpose of the quote to promote sports in educational institutions. The High Court’s order was set aside, and the appeal was allowed by the Apex Court.
SC: Section 197 of CrPC is not applicable for nationalized bank employee since they need not require a sanction from the government for removal
The appellant in the case, A. Sreenivasa Reddy vs. Rakesh Sharma, is an Assistant General Manager, State Bank of India, Overseas Bank (Bank), Hyderabad. He is alleged to have conspired with another co-accused of cheating the Bank by sanctioning a corporate loan of Rs. 22.50 crore in favour of Sven Genetech Limited, Secunderabad. The Central Bureau of Investigation (CBI) registered an FIR under the offences arising out of the IPC and Prevention of Corruption Act, 1988 (PC Act). The Telangana High Court dismissed his petition for quashing the FIR.
He then appealed to the Apex Court. One of the issues considered by the bench comprising Justice B R Gavai and Justice J B Pardiwala was whether the appellant is removable from his office save by or with the sanction of the Government to make Section 197 of the CrPC applicable. The Bench observed that the provisions of Section 197 of the CrPC would not be attracted at all as Section 197 is attracted only in cases where the public servant is such who is not removable from his service save by or with the sanction of the Government. Thus, the provisions were not applicable in his case even though he was deemed as a ‘public servant’ for the purpose of provisions under the PC Act. However, the same was not applicable for IPC.
SC: To threaten a person to withdraw a complaint or FIR or to settle the dispute is not punishable under Section 195A
In Salib @ Shalu @ Salim vs. State of UP, an FIR was filed against the accused persons for threatening and pressurizing the first informant to withdraw her first FIR registered for the offences punishable under Sections 376D, 323, 120B, 354A and 452 of the IPC as well as sections of POCSO Act. Sections 147, 148, 149, 195A, 385 and 504 of the IPC were also added by the Investigating agency based on the statements referred. The High Court of Allahabad dismissed the accused’s petition seeking quashing of FIR.
When hearing the appeal, the Supreme Court Bench of Justices B R Gavai, and J B Pardiwala observed that if any individual is threatened with any injury to his person, reputation or property and such threats are administered with intent to cause that person to give false evidence, the same would constitute an offence under Section 195A of the IPC. However, in this case, the Court noted that there was nothing to show that the accused persons threatened the first informant with the intent to force them to give false evidence before the Court.
Elaborating on Section 195A, the Court noted that if a person is convicted and sentenced based on false evidence, then the person who administered the threats would be liable for the same punishment and sentence that the innocent person was punished and sentenced to. It noted that, even if the allegations in the FIR were true, then none of it constituted an offence punishable as per Section 195A. That is, to threaten a person to withdraw a complaint or FIR or to settle the dispute was not punishable under Section 195A. Further, the court also observed that there was no evidence of extortion as well in the case. The Bench quashed the criminal proceedings against the accused observing that the entire case put up by the first informant on the face of it appeared to be concocted and fabricated.
SC: Insurance companies should deal in a fair and bonafide manner and not care only about its profits
In the case Isnar Aqua Farms vs. United India Insurance Co. Ltd, the complainant was engaged in prawn cultivation across 100 acres and had insurance coverage for his prawns. A bacterial disease called ‘White Spot Disease’ spread along the east coast of Andhra Pradesh which resulted in large mortality of his prawns. The complainant filed a claim with his insurance company, but the claim was rejected on grounds that there was a breach by the complainant of the policy conditions as records were not maintained properly and accurately.
The National Consumer Disputes Redressal Commission (NCDRC) assessed the complainant’s loss at ₹ 30.69 lakhs and ruled in his favour. Dissatisfied with the NCDRC’s decision, the complainant appealed to the Supreme Court.
The Supreme Court Bench of Justices AS Bopanna and Sanjay Kumar directed that a sum of Rs 45.18 lakh must be paid by the insurance company to the firm, with 10% interest from the date of the complaint till the date of realisation, within six weeks. It also noted that the insurance company had baldly brushed aside the Death Certificate from 1995 furnished by the officials of the State Fisheries Department at Visakhapatnam because the contents were not favourable to them. Noting this, the Bench added that an insurance company is expected to deal with the insured in a bonafide and fair manner and should not just care for and cater to its own profits. It also added that it was the duty of the insurance company to disclose all material facts within their knowledge since the obligation of good faith applies to both the parties equally.
Bombay HC: It is the statutory duty of municipal bodies to ensure that potholes are filled in
In Ruju R. Thakker vs. State of Maharashtra, the court heard a contempt petition regarding the poor condition of roads in the state despite the Court’s order in 2018 issuing directions to Municipal Corporations and other authorities and the State Government to maintain the streets and roads, including footways/footpaths in good and proper condition. The order also held that it was the responsibility of the Corporations to keep the streets and footways properly levelled and surfaced and further that Corporations should ensure that potholes and ditches are properly filled in. In an order from 2022, it held that any untoward incident due to the poor roads, the respective Municipal Commissioner(s), Metropolitan Commissioner, Chief Engineer shall be held personally responsible. The Court noted that adequate measures were not taken by the Corporations. The bench of Chief Justice Devendra Kumar Upadhyay and Justice Arif Doctor summoned six Municipal Commissioners of the Mumbai Metropolitan Region to explain the non-compliance to the orders and the poor condition of roads and open manholes.


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Review: SC Rules That a Child Adopted By Widow After Government Servant’s Death is Not Entitled To Family Pension
Sai Krishna Muthyanolla
January 25, 2023
In this week’s review of Court Judgments, we look SC’s judgments ruling that IT Returns show that the complainant did not have the financial capacity to lend money to the accused, that chargesheet is not public document and cannot be published online or accessed through RTI, that a child adopted by widow after government servant’s death is not entitled to family pension, that though nature of work is same, pay may differ based on educational qualifications.
SC: IT Returns show that the complainant did not have the financial capacity to lend money to the accused
In the case, Rajaram Sriramulu Naidu (D) vs. Maruthachalam (D), the appellant was convicted by the Madras High Court in 2008 in a cheque bounce case and sentenced to a fine of Rs. 7 lakhs in respect of two cheques for an amount of Rs. 3.5 lakhs each. The High Court had reversed the Trial Court’s decision to acquit the accused. Challenging the High Court’s decision, the appellant approached the Apex Court.
The appellants contended that the blank cheques issued in 1992 by way of security for chit funds were misused by the Respondents in 1999. Also, it was argued that the respondents did not have the financial capacity to lend money as alleged looking at the income which was shown in the Income Tax Returns. The certified copies of the Income Tax Returns submitted by an Income Tax Officer established that the complainant had not declared that they had lent Rs. 3 lakhs to the accused. Further, their agricultural income was also not declared in the Income Tax Returns. The Trial Court was highly doubtful as to whether the respondents had lent the money.
Agreeing with the Trial Court, the Supreme Court Bench of Justices B R Gavai and M M Sundresh observed that the defence raised by the appellant satisfied the standard of “preponderance of probability” which means “more probable and rational view of the case”. It noted that the standard of proof for rebutting the presumption under Section 139 of the Negotiable Instruments Act is that of a preponderance of probabilities and that inference of preponderance of probabilities can be drawn from the materials submitted to the Court and also by reference to the circumstances upon which they rely.
SC: Chargesheet is not public document and cannot be published online or accessed through RTI
In Saurav Das vs. Union of India and Others, the petitioner filed a plea requesting to publish the chargesheets filed in cases on a public platform for easy access by the general public. He added that while publishing copies of FIRs has induced transparency in the criminal justice system, these were based on only allegations whereas disclosing chargesheets were more important as these are filed after due investigation.
A bench comprising Justices MR Shah and CT Ravikumar dismissed the plea stating that chargesheet cannot be considered a “public document” as per the Evidence Act. It added that the FIRs are published in the public domain for the interest of the accused so that the innocent accused is not harassed and can get relief from the competent court. However, with respect to chargesheets and their relevant documents, publishing them in the public domain will contradict the Scheme of CrPC and may violate the rights of the accused, victim, and/or the investigating agency. Further, the Bench noted that copies of the chargesheet and the relevant documents along with it do not fall under the ambit of the Right to Information Act.
SC: Child adopted by widow after government servant’s death is not entitled to family pension
In Shri Ram Shridhar Chimurkar vs. Union of India, Shridar Chimurkar served as a superintendent in the National Sample Survey Organization at Nagpur and retired in 1993. After his death, his wife adopted the appellant as her son in 1996 and lived in a portion of a house owned by Prakash Motghare, the natural father of the adopted son.  Later, in 1998, the widow re-married and relocated to Delhi. The adopted son claimed a family pension payable to the family of the deceased government employee.
However, the government rejected the claim on grounds that children adopted by a widow of a government servant, after the death of the government servant, would not be entitled to receive a family pension as per Rule 54(14) (b) of the Central Civil Services (Pension) Rules.  He approached the Central Administrative Tribunal, Mumbai, which directed the authorities to consider his claim by considering him the adopted son of the deceased government employee by referring to Sections 8 and 12 of the Hindu Adoptions and Maintenance Act, 1956. As per the Act, the widow of a Hindu male is competent to adopt a child without there being a direction/expression of a desire to that effect, by her deceased husband. That is, the child adopted by the widow should also be considered the child of her deceased husband. The matter was then taken to the High Court which reversed the Tribunal’s order following which the matter was taken to the Apex Court.
The issue before the Supreme Court was whether a child adopted by a widow of a government servant, after the death of the government servant is included within the scope of ‘family’ defined under Rule 54 (14) (b) of the CCS (Pension) Rules and would therefore be entitled to receive family pension payable under the said Rules. Going through the concerned legislations in-depth, the Supreme Court Bench of Justices K M Joseph and B V Nagarathna noted that the purpose of family pension was to help the dependents of the deceased government servant tide over the crisis and to extend to them some succour. In other words, persons who were not dependents of the government servant at the time of his death were not ‘family’. The Court dismissed the appeal.
SC: Asks other courts and adjudicating authorities to use more reliable and authentic sources of information instead of relying on Wikipedia
In HP India Sales Pvt. Ltd. vs. Commissioner of Customs (Import), Nhava Sheva, HP classified the ‘All in One Integrated Desktop Computer’ under ‘Tariff Item 8471 50 00’ as per the prevalent selfassessment procedure. But, during subsequent examination by the Custom Authorities, these were classified under ‘Tariff Item 8471 30 10’, which was later confirmed by the Assistant Commissioner of Customs and Commissioner of Customs (Appeal). These findings were further affirmed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The method of computing the duty is different for different classifications. The issue before the Supreme Court was whether the concerned goods were ‘portable’ or not for classification. Considering various factors such as dimensions, weight, electricity supply, etc, the Bench concluded that the goods were not ‘portable’.
While allowing the appeal, the Apex Court bench of Justices Surya Kant and Vikram Nath observed that the Commissioner of Customs (Appeal) had extensively referred to online sources like Wikipedia to support their conclusion. The Bench noted that these platforms were a treasure trove of knowledge across the world. However, these sources are based on crowdsourced, and user-generated and can promote misleading information as has been noted by the court on previous occasions also. The Court asked other courts and adjudicating authorities to use more reliable and authentic sources of information.
SC: Though nature of work is same, pay may differ based on educational qualifications
In the Union of India & Other vs. Rajib Khan & Others, the appeal was filed by the Union of India against the Gauhati High Court’s judgement that the Nursing Assistants (the original writ petitioners) in various hospitals under the ‘Border Security Force’ were all entitled to Nursing Allowance. The respondents were all being paid a ‘Hospital Patient Care Allowance’ and had filed writ petition that they were entitled to the Nursing Allowance like it was being given to the Staff Nurse.
The SC Bench comprising of Justices MR Shah and CT Ravi Kumar referred to past judgements and noted that academic qualifications are a valid criterion for different pay scales for different employees even if the nature of the work is more or less the same. In this case, the Staff Nurse had to complete four years course while the Nursing Assistants need have completed only one year course. Similarly, the required experience was also different for Staff Nurses and Nursing Assistants. Nursing Assistants did not possess any registration certificate issued by the State Nursing Council and the Indian Nursing Council. In short, though the nature of work was on the same lines, the required educational qualification, experience, etc. varied and so the pay was different. The Union of India’s appeal was allowed by the Supreme Court.

created: January 25, 2023