SERV ICE & LABO UR LAW S
TRIBUNAL DOES NOT SIT IN APPEAL OVER THE
EXPERT OPINION OF MEDICAL BOARD
A Bench of Justices Indira Banerjee and V.
Ramasubramanian of the Supreme Court held Army
Tribunal does not sit in appeal over the expert opinion
of a Medical Board. No reason is disclosed for not
accepting the opinion of Release Medical Board held
on 30.01.1997 nor any infirmity is found in the decision
making process adopted by it. Hence, no direction
could be given for constitution of a Resurvey Medical
Board and that too after two decades from the date of
discharge. The question of entitlement to disability
pension cannot be determined on the basis of medical
examination conducted 20 years after discharge. Even
Tribunal realized that accurate medical opinion could
not be obtained after lapse of 30 years from the date
of recruitment and 20 years from the date of discharge.
It is for this reason that it sought assessment of
‘probable duration of disability’. Even the Resurvey
Medical Board constituted in compliance with
Tribunal’s direction did not opine that the disability,
if any, was either caused or aggravated by military
service.
The Supreme Court held judgment in Rajbir’s Singh
case [JT 2015 (2) SC 392] was rendered in the context
of invalidation from service on medical grounds. Rule
14(b) relied upon in the said case was not attracted to
this case as respondent was not discharged on
medical ground. As per the rule, there was a rebuttable
presumption to the effect that if a disease led to an
individual’s discharge or death, such disease was
ordinarily to be deemed to have arisen in service, if
no note of it was made at the time of individual’ s
acceptance for military service. If there was medical
opinion that the disease could not have been detected
on medical examination prior to acceptance for service,
the disease was not to be deemed have arisen during
service. In this case, since discharge was on
administrative grounds there was no reason for Review
Medical Board to give any opinion on this question.
Nor the Board was directed to do so. Had Medical
Board given an opinion that the disease could not
have been detected on medical examination prior to
appointment, the disease/disability would not be
deemed to have arisen during service. Furthermore,
mere fact that an ailment or disease might have arisen
in service did not imply that the ailment or disease was
attributable to service conditions. Tribunal patently
erred in proceeding on a misconceived notion that any
ailment or disability , not noted at the time of
recruitment but detected or diagnosed at the time of
his discharge or earlier would entitle the soldier to
disability pension on the presumption that the
disability was attributable to military service, whether
or not the disability led to his dischar ge, and the onus
was on the employer to prove otherwise. Appellants
did not even get the opportunity to show that the
ailment was not caused or aggravated by military
service in terms of Rule 14(b) and 14(c).
The Supreme Court held no such finding was patently
conjectural and not based on any materials on record.
The case of respondent was distinguishable as he was
not discharged on medical grounds, unlike Rajbir or
Dharamvir. He was dischar ged on administrative
grounds as an undesirable soldier. He had earned red
ink entries in his service records on 7 occasions. He
was a habitual offender. This was despite repeated
counseling and advice given by his superiors. Opinion
of the Release Medical Board held on 30.01.1997 with
regard to his ailment did not entitle him to disability
pension, as the ailment did not lead to his discharge.
Even otherwise, his disability was not attributable to
military service.
Ex. Sep. R. Munusamy – the Respondent was enrolled
www.lawteller.com I October 2022 I 471
SERV ICE & LABO UR LAW S
in the Army on 26 th March 1987. By an order dated
5th April 1997, the Respondent was dischar ged from
service on administrative grounds, as an undesirable
Soldier under Rule 13(3) III(v) of the Army Rules,
1954. The Respondent had rendered service for nine
years seven months and one day excluding 161 days
of non-qualifying service. Annexed to the appeal is
a copy of the Order/Certificate of the Commandant
dated 12th October 1996 regarding the proposal to
discharge the Respondent. As per the certificate of
the Commandant, service of the Respondent was no
longer required. The cause of discharge was shown
in paragraph 20 as “Undesirable Soldier under Rule
13 III(V) of Army Rules, 1954”.
At the time of discharge, the Respondent was in low
medical category. A meeting of the Release Medical
Board held on 30th January 1997 found “Right Partial
Seizure with Secondary Generalization 345” neither
attributable to nor aggravated (NANA) by military
service. The disability was assessed @ 20% for two
years. 4. The Respondent did not challenge his
discharge under Rule 13(3) III(v) of the Army Rules,
1954 as an undesirable soldier. The Respondent,
however, made an application claiming disability
pension. By order No. G-3/85/318/11-97 dated 19 th
May 1998, the Office of the Chief CDA(P),Allahabad
rejected the claim of the Respondent for disability
pension. Relevant part of the said order reads as
under :-
“3. Accordingly, for clauses (i) & (ii) of Para
1 above, no disability pension is admissible
under the existing rules. The above
decision may pl. be communicated to the
individual under registered post alongwith
MA(P)’s findings, and a clause may also be
added therein that he may appeal against
the decision not later than six months from
the date of issue of this letter , on such
grounds as he may deem fit to put forth, if
desired by him.
472 I October 2022
4. A sum of Rs.10450 on account of invalid
gratuity and a sum of Rs.15711 on account of
dcrg has been admitted. In case, the individual
dies before receiving dcrg amount it should not
be paid to his heirs & the matter referred to g-
4 section of this office.”
On 6th October 1998, the Respondent filed an appeal
against the rejection of disability pension. The Appellate
Authority rejected the appeal. By a communication
dated 11 th January 2000, the Respondent was informed
that his appeal against rejection of disability pension
had been rejected by the first Appellate Authority.
On 25 th August 2017 i.e. almost 20 years after his
discharge and over seventeen and a half years after the
dismissal of his appeal against the rejection of disability
pension, the Respondent sent a legal notice claiming
disability pension on the ground of parity with one
Dharamvir Singh and one Rajbir Singh.
By a communication dated 27 th October 2017, the
Appellant No. 3 replied to the said notice stating:-
“You have been discharged under Army Rule
13(3) III (v) being undesirable soldier and not
invalidated out from service as mentioned in
your above legal notice. Hence, disability
pension is not admissible as per existing rules
in force”
Being aggrieved, the Respondent filed O.A. No. 53 of
2018 before the Tribunal claiming disability pension and
benefits under Regulation 183 of the Army Pension
Regulation, 1961. The application has been allowed by
the judgment and order impugned.
Against the judgment of the Tribunal, special leave
petition was filed. The Supreme Court accepted the
appeal, set aside the impugned judgment of the Tribunal.
OPERATIVE PART
“In this case, since the discharge was on administrative
grounds and not medical grounds, there was no

occasion for the Release Medical Board or for that
matter, the Resurvey Medical Board to give any
opinion as to cause and nature of the ailment of the
Respondent of “Right Partial Seizure with
Secondary Generalisation 345” as diagnosed,
whether such disability/ailment could reasonably
have gone undetected at the time of appointment of
the Respondent, in terms of Rule 14(b) of the
Entitlement Rules. The Appellants did not get the
opportunity to show that the ailment was not caused
SERV ICE & LABO UR LAW S
or aggravated by military service in terms of Rule 14(b)
and 14(c) of the Entitlement Rules referred to above.
The claim of the Respondent for disability pension
should not have been entertained and that too, 20
years after his discharge.”
Reference: Supreme Court. Union of India &
Ors. Vs. Ex. Sep. R. Munusamy, Civil Appeal
No. 6536 of 2021 dt. 19.07.2022.
—————

IN B R IE F

Offence of committing rape, hurling abuses and extending threats do not fall within ambit of ‘one
series of acts so connected together as to form same transaction’ for purpose of trial. Ms. P1* xxxx Vs. State
of Uttarakhand & Anr., Criminal Appeal No. 903 of 2022 (SC).

Fact that doctors failed to save patient cannot be considered to be case of post operative medical
negligence. Dr. (Mrs.) Chanda Rani Akhouri & Ors. Vs. Dr. M.A. Methusethupathi & Ors., Civil Appeal No.
6507 of 2009 (SC).

Section 22(2) of Specific Relief Act is only directory – Decree holder cannot be non suited for reason
that such relief was not granted in decree for specific relief. Manickam @ Thandapani & Anr. Vs. Vasantha,
Civil Appeal No. 2726 of 2022 (SC).

If, by permitting plaintiffs to amend plaint including a prayer clause nature of suit is likely to be changed,
Court not justified in allowing amendment. Asian Hotels (North) Ltd. Vs. Alok Kumar Lodha & Ors., Civil
Appeal Nos. 3703-3750 of 2022 (SC).

Right of private defence is necessarily defensive right which is available only when circumstances so
justify it. Ex. Ct. Mahadev Vs. Director General, Border Security Force & Ors., Civil Appeal No. 2606 of
2012 (SC).

Additional District Magistrate and Additional Chief Metropolitan Magistrate can exercise as per Section
14 of SARFAESI Act. M/s R.D. Jain & Co. Vs. Capital First Ld. & Ors., Civil Appeal No. 175 of 2022 (SC).

Advantage of decision reported in Tofan Singh judgment may be taken in regular bail application or
at time of final hearing after conclusion of trial. State of Haryana Vs. Samarth Kumar, Criminal Appeal No.
1005 of 2022 (SC).

High Court kept application for grant of anticipatory bail pending and issued directions, including to
issue notice to third parties to appear before Court impermissible and cannot be countenanced. Subrata Roy
Sahara Vs. Pramod Kumar Saini & Ors., Criminal Appeal Nos. 955-956 of 2022 (SC).

www.lawteller.com I October 2022 I 473

SERV ICE & LABO UR LAW S

IF A PARTICULAR PROCEDURE IN FILLING THE

FORM PRESCRIBED, THE FORM BE FILLED UP
FOLLOWING THAT PROCEDURE
A Bench of Justices Hemant Gupta and Vikram Nath of the Supreme Court held it is well settled that if a particular
procedure in filling up the application form is prescribed, the application form should be filled up following that
procedure alone. Use of different language, in violation of the condition mentioned in the advertisement,
disentitled the writ petitioner from any indulgence in exercise of power of judicial review.
The Bench held the reasoning given by Court below was based on surmises and conjectures. Once the writ
petitioner had filled the application form and signed it in English, his writing a para in Hindi in OMR Sheet
could not be called an inadvertent mistake.
The Employment Notice No. 1/2011 was published to fill up 11952 posts of Constables in the Railway Protection
Force (RPF). The process of selection comprised of written examination consisting of 120 multiple choice objection
type questions of one mark each and of 90 minutes duration. The candidates had to obtain at least 35% marks
(30% in the case of Scheduled Caste and Scheduled Tribe candidates) in the written examination for being
considered for other Test such as Physical Efficiency Test (PET). Para 8 Clause B of the Advertisement gives
the requirement of an application form and also that the said application should be filled up by the candidates
in their own handwriting, in Hindi or English only. The applications were required to be accompanied by a self-
attested matriculation certificate as proof of educational qualification and age. The relevant conditions read as
under:
“8. xxx xxx
B. Application form’ a) The format of the application form is given in Annexure ‘A’. Application forms
can be downloaded from the official website of Indian Railways (www.indlanrailways.gov.in) or taken
from the Employment News or from this advertisement and submitted on A-4 size bond paper, using
one side only and sent to the Nodal Chief Security Commissioner corresponding to the language chosen
for the Question Paper. Only one application need be sent. The addresses of the Nodal Chief Security
Commissioners, the details of the person in whose favour the Draft/IPO shall be drawn and the place
where payable are given below. The languages for the question paper are also shown against each
Nodal Chief Security Commissioner for the convenience of the applicants.
Group Address of Draft/IPO drawn Place where Languages for
No. the Nodal Chief in favour of payable question paper
Security
Commissioner
1 The Chief Security The Financial Gorakhpur, UP Hindi, English, Urdu,
Commissioner, Advisor and Punjabi, Gujarati.
North Eastern Chief Accounts
Railway, Post Officer,
BoxNumber-2 North Eastern
HeadPost Office, Railway.
Gorakhpur,
UttarPradesh.
xx xx xx
(e) Applications should be filled by the candidates in their own handwriting, in Hindi or English only .
Left Hand thumb impression in the case of Male applicants and Right-Hand thumb impression in case

474 I October 2022


of Female applicants shall be affixed in the
box given at the bottom of the application.
Applications signed in capital letters/spaced-
out letters will be treated as invalid.
Applications with correction or overwriting
or smudged thumb impression may be
rejected.
xx xx xx
9 (e) Impersonation, if any, detected at any
stage of the recruitment, may result in
initiating criminal cases against the applicant
and the impersonator as well as canceling the
candidature of the applicant.”
The writ petitioner belongs to Other Backward Class
category and has filled up his application form along
with Indian Postal Order dated 5.3.2011 in English. His
signatures are in English consisting of two letters “M”
and “S”. Such application form is accompanied with a
self-attested marksheet of high school examination and
other certificates. All such documents are self-attested
and signed in Hindi.
The writ petitioner appeared for the written test on
23.6.2013 where he wrote the paragraph in Hindi on
the OMR sheet, though in the application form, he had
written it in English. He signed in Hindi then.
Subsequently, when the writ petitioner appeared for
the PET on 7.3.2014, he again signed as “M S”.
The appellants obtained the opinion of the
Government Examiner of Questioned Documents
(GEQD) on 2.9.2014. The expert’s opinion was that the
signatures on the OMR sheet and on the xerox copies
of the certificates are by one and the same person. It
was also opined that it is not possible to express any
opinion in respect of para written in Hindi in the OMR
sheet and in English in the application form.
Since the writ petitioner was not appointed, though
he had obtained 73.32 marks against the cut-off of 58.5
marks in the OBC category, he filed a writ petition
before the High Court of Allahabad. An order was
passed by the High Court on 19.10.2016 wherein the
SERV ICE & LABO UR LAW S
matter was remitted to the appellants to reconsider the
entire issue, including thumb impression and finger
prints that have taken place at various stages of the
examination. An opportunity was given to the writ
petitioner to make a fresh application which shall be
heard by the Chief Security Commissioner . The
candidature of the writ petitioner was rejected on
27.1.2017 by the Competent Authority.
The writ petitioner again filed a writ petition
challenging the decision of the Competent Authority.
Said decision was set aside by the Single Bench of
the High Court on 20.2.2019. The said order was
affirmed by the Division Bench of the High Court.
Against the judgment in appeal, special leave petition
was filed. The Supreme Court accepted the appeal,
consequently dismissed the writ petition. The order
passed by the High Court was set aside.
OPERATIVE PART
“The argument of Mr. Bhushan that use of different
language is not followed by any consequence and,
therefore, cannot be said to be mandatory is not
tenable. The language chosen is relevant to ensure
that the candidate who has filled up the application
form alone appears in the written examination to
maintain probity. The answer sheets have to be in the
language chosen by the candidate in the application
form. It is well settled that if a particular procedure
in filling up the application form is prescribed, the
application form should be filled up following that
procedure alone. This was enunciated by Privy
Council in the Nazir Ahmad v. King Emperor [1936
SCC OnLine PC 41], wherein it was held that “that
where a power is given to do a certain thing in a
certain way the thing must be done in that way or
not at all. Other methods of performance are
necessarily forbidden.”
Reference: Supreme Court. Union of India
& Ors. Vs. Mahendra Singh, Civil Appeal No.
4807 of 2022 dt. 25.07.2022.
—————
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T ERM IN ATIO N O F PREGN AN CY

WORDS OF A STATUTE MUST BE READ IN THEIR

GRAMMATICAL AND ORDINARY SENSE
A Bench of Justices Dr. Dhananjaya Y. Chandrachud, would be contrary to the intent and purpose of the
Surya Kant and A.S. Bopanna of the Supreme Court law enacted by Parliament. Moreover , live-in
ruled words of a statute must be read in their entire relationships have been recognized by Supreme Court.
context and in their grammatical and ordinary sense
The Top Court made it clear delay in judicial process
harmoniously with the scheme of the Act and the
cannot work to her prejudice. Direction given for
intent of legislature.
constitution of a Medical Board in terms of the
The Apex Court held expression “change of marital provisions of Section 3(2D) of the Act of 1971. If the
status” should be given a purposive interpretation. Medical Board concludes that the fetus can be aborted
Expression “widowhood and divorce” need not be without danger to petitioner’s life, a team of doctors
construed to be exhaustive of the category which at the AIIMS shall carry out the abortion.
precedes it. The Parliamentary intent was not to
X (the petitioner) is a permanent resident of Manipur
confine the beneficial provision of Medical
and is stated to be currently residing in Delhi. The
Termination of Pregnancy Act only to a situation
petitioner has averred that she was in a consensual
involving a matrimonial relationship. Parliament by
relationship and, in the month of June 2022 she learnt
amending the Medical Termination of Pregnancy Act,
that she was pregnant. On 5 July 2022, an ultrasound
1971 through Act 8 of 2021 intended to include
scan revealed a single intrauterine pregnancy of a term
unmarried women and single women within the ambit
of twenty-two weeks. The petitioner decided to
of the Act. This is evident from replacement of words
terminate the pregnancy; her relationship has failed.
‘married woman’ by ‘any woman’ and word ‘husband’
She has stated that she is the eldest amongst five
by ‘partner’ in Explanation I of Section 3(2). Further ,
siblings and her parents are agriculturists. The
such an interpretation is in consonance with the object
petitioner has stated that she holds a BA degree and,
of the Act.
in the absence of a source of livelihood, she would be
The Bench held legislature has not intended to make unable to raise and nurture a child. She moved a writ
a distinction between a married and unmarried woman, petition before the High Court of Delhi.
in her ability to make a decision on whether or not to
The Division Bench of the High Court, by an order
bear a child. Such a distinction has no nexus to the
dated 15 July 2022, issued notice restricted only to
basic purpose and object which is sought to be
prayer C of the petition, in which the petitioner has
achieved by the Parliament. Statute recognizes the
sought a direction for the inclusion of an unmarried
reproductive choice of a woman and her bodily
woman within the ambit of Rule 3B of the MTP Rules
integrity and autonomy . These rights are in
for the termination of pregnancy in terms of the
consonance with the provisions of Article 21. Denying
provisions of clause (b) of sub-section (2) of Section
an unmarried woman the right to a safe abortion
3 of the MTP Act.
violates her personal autonomy and freedom. There
is no basis to deny unmarried women the right to No notice has been issued by the High Court on
medically terminate the pregnancy, when the same prayer A or prayer B of the petition which effectively
choice is available to other categories of women. stand rejected.
Making petitioner suffer an un-wanted pregnancy For convenience of reference, prayers A, B and C of

476 I October 2022


the petition before the High Court are extracted below:
“A. Permit the Petitioner to terminate her
ongoing pregnancy through registered
medical practitioners at any approved private
or government center or Hospital before
15.07.2022 as her relief will be infructuous after
that as the pregnancy will be of around 24
Weeks by that time;
B. Restrain the Respondent from taking any
coercive action or criminal proceedings
against the Petitioner or any Registered
Medical Practitioner terminating the
pregnancy of the petitioner at any approved
private center or hospital registered by Govt
NCT of Delhi;
C. Direct the Respondent to include
unmarried woman also within the ambit of the
Rule 3B of the Medical Termination of
Pregnancy Rules 2003 (as amended on
21.10.2021) for termination of pregnancy
under clause (b) of sub-section (2) Section 3
of the MTP Act, for a period of up to twenty-
four weeks;
The petitioner has completed 24 weeks of her
pregnancy on 18 July 2022.
Rule 3B of the MTP Rules has been made in pursuance
of the provisions of clause (b) of sub-section (2) of
Section 3 of the MTP Act. Rule 3B is as follows:
“3B. Women eligible for termination of
pregnancy up to twenty-four weeks.- The
following categories of women shall be
considered eligible for termination of
pregnancy under clause (b) of sub-section(2)
section 3 of the Act, for a period of up to
twenty-four weeks, namely:-
(a) survivors of sexual assault or rape or
incest;
(b) minors;
(c) change of marital status during the
T ERM IN ATIO N O F PREGN AN CY
ongoing pregnancy (widowhood and
divorce);
(d) women with physical disabilities [major
disability as per criteria laid down under the
Rights of Persons with Disabilities Act, 2016
(49 of 2016)];
(e) mentally ill women including mental
retardation;
(f) the foetal malformation that has
substantial risk of being imcompatible with
life or if the child is born it may suffer from
such physical or mental abnormalities to be
seriously handicapped; and
(g) women with pregnancy in humanitarian
settings or disaster or emergency situations
as may be declared by the Government.”
The High Court held that since the petitioner is an
unmarried woman whose pregnancy arose out of a
consensual relationship, her case is “clearly not
covered” by any of the above clauses of Rule 3B and,
as a consequence, Section 3(2)(b) is not applicable.
Against the judgment of the High Court, special leave
petition was filed. The Supreme Court passed the
following ad-interim order:-
(i) We request the Director of the All India
Institute of Medical Sciences, Delhi to
constitute a Medical Board in terms of the
provisions of Section 3(2D) of the Act,
extracted in the earlier part of this order ,
during the course of 22 July 2022; and
(ii) In the event that the Medical Board
concludes that the fetus can be aborted
without danger to the life of the petitioner, a
team of doctors at the All India Institute of
Medical Sciences shall carry out the abortion
in terms of the request which has been made
before the High Court and which has been
reiterated both in the Special Leave Petition
and in the course of the submissions before
this Court by counsel appearing on behalf of
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T ERM IN ATIO N O F PREGN AN CY
the petitioner. Before doing so the wishes of
the petitioner shall be ascertained again and
her written consent obtained after due
verification of identity.
The report shall be furnished to Supreme Court after
compliance with this order within a period of one week
thereafter.
For considering the report of the Medical Board, list
the Special Leave Petition on 2 August 2022.
The ad interim direction of the High Court of Delhi
declining to grant interim relief shall stand modified
in the above terms.
OPERATIVE PART
“On the above premises, we are inclined to entertain
the Special Leave Petition. In the meantime, we are
of the view that allowing the petitioner to suffer an
unwanted pregnancy would be contrary to the intent
of the law enacted by Parliament. Moreover, allowing
the petitioner to terminate her pr egnancy, on a
proper interpretation of the statute, prima facie, falls
within the ambit of the statute and the petitioner
should not be denied the benefit on the ground that
she is an unmarried woman. The distinction between
a married and unmarried woman does not bear a
nexus to the basic purpose and object which is sought
to be achieved by Parliament which is conveyed
specifically by the provisions of Explanation 1 to
Section 3 of the Act. The petitioner had moved the
High Court before she had completed 24 weeks of
pregnancy. The delay in the judicial process cannot
work to her prejudice.”
Reference: Supreme Court. X Vs. The
Principal Secretary Health and Family Welfare
Department & Anr., SLP (C) No. 12612 of 2022
dt. 21.07.2022.
—————

IN B R IE F
Right to appoint arbitrator stood forfeited for not appointingArbitrator as per agreement – Appointment
of sole arbitrator in exercise of powers under Section 11(6).M/s Continental India Pvt. Ltd. Vs. General Manager
Northern Railway, Civil Appeal No. 4829 of 2022 (SC).
Custody of child to be decided solely looking into question as to, ‘what would be best interest of
child. Rohith Thammana Gowda Vs. State of Karnataka & Ors., Civil Appeal No. 4987 of 2022 (SC).
When man is at point of death and when every expectation of this world is gone, it hushes away
every motive of lie. Kamal Khudal Vs. State of Assam, Criminal Appeal No. 470 of 2015 (SC).
In exercise of powers under Section 33 of Wild Life (Protection) Act, 1972, authority cannot impose
damages. State of Uttar Pradesh & Ors. Vs. Anand Engineering College & Anr., Petition for Special Leave
to Appeal (Civil) Nos. 10084-85 of 2022 (SC).
Even entries in books of accounts and/or balance sheets of Corporate Debtor would amount to
acknowledgment. Kotak Mahindra Bank Ltd. Vs. Kew Precision Parts Pvt. Ltd. & Ors., CivilAppeal No. 2176
of 2020 (SC).
Even evidence of hostile witness can be considered to extent, it supports case of prosecution. Malti
Sahu Vs. Rahul & Anr., Criminal Appeal No. 471 of 2022 (SC).
Electricity cannot be declined to tenant on ground of failure/refusal of landlord to issue no objection
certificate. Dilip (Dead) Through Lrs. Vs. Satish & Ors., Criminal Appeal No. 810 of 2022 (SC).

478 I October 2022


SECTION 482 CAN BE EXERCISED TO QUASH
CRIMINAL PROCEEDING RELATING TO NON
COMPOUNDABLE OFFENCES
A Bench of Justices Indira Banerjee and V.
Ramasubramanian of the Supreme Court said wide
inherent powers under Section 482 can be exercised
to quash criminal proceedings relating to non-
compoundable offences also, so as to secure ends of
justice or to prevent abuse of the process of Court.
In what cases such power can be exercised, would
depend on facts and circumstances of the case. Where
victim and offender have compromised disputes which
are essentially civil and personal in nature, High Court
can quash the criminal proceedings. However, in doing
so, High Court must consider the nature and gravity
of offence. Heinous or serious crimes, which are not
private in nature and have a serious impact on society
cannot be quashed on the basis of a compromise,
otherwise it would set a dangerous precedent. Crimes
like murder, rape, burglary, dacoity, and even abetment
to commit suicide are neither private nor civil in nature.
Such crimes being against the society , in no
circumstances can prosecution be quashed on
compromise.
The Apex Court held inherent powers of High Court
under Section 482 Criminal Procedure Code, 1973 to
interfere with criminal proceedings are very wide. Such
powers have to be exercise sparingly, carefully and
with circumspection and only when such exercise is
justified by the tests specifically laid down in the
section itself. In exceptional cases, to prevent abuse
of the process of the Court, High Court might in
exercise of such powers, quash criminal proceedings.
However, interference would only be justified when the
complaint does not disclose any offence or is patently
frivolous, vexatious, oppressive or is vitiated by
malafides or vendetta. High Court would not ordinarily
embark upon an enquiry into whether the evidence is
CRIM INAL LAW S
reliable or not or whether there is reasonable
possibility that the accusation would not be sustained.
It would not examined the correctness of the
allegations except in exceptionally rare cases where it
is patently clear that the allegations are frivolous or
do not disclose any offence.
The Supreme Court held in criminal jurisprudence, the
position of the complainant is only that of an
informant. In case of grave and serious non-
compoundable of fences which impact society ,
informant/complainant only has a right of hearing, to
the extent of ensuring that justice is done by
conviction and punishment of the offender. Once an
FIR/criminal complaint is lodged and a criminal case
is started by the State, it becomes a matter between
the State and the accused. It is for the State to
prosecute offenders as it has a duty to maintain law
and order in the Society.
One Pinakin Kantibhai Patel, claiming to be a cousin
of the deceased, as also an Accountant working for
the deceased, lodged an FIR being C.R. No. I-
11209016200112 dated 1 st March 2020 with
Himmatnagar Police Station, District Sabarkantha,
naming 12 accused persons, being the applicants in
the Criminal Miscellaneous Applications in the High
Court under Section 482 of the CrPC, referred to
above, alleging that they had committed offence under
Section 306 of the Indian Penal Code, 1860 (IPC) of
abetting the commission of suicide by the deceased.
As per the FIR, the deceased left a hand-written note,
the contents whereof are as hereunder:-
“With due respect, I am to state that I,
Shaileshkumar Chimanlal Patel, Proprietor of
Jigar Transport, state that I have been
www.lawteller.com I October 2022 I 479
CRIM INAL LAW S
cheated. The names and statement are as
under
1. As per the instructions of Anil Mathur, I
have paid amounts as under: Anil Mathur,
RTO, Jodhpur, Service Ratanpur RTO Check
Post, Anil Mathur, Rs.600000/-, Pramod
Dadhichi Rs.10,00,000/-, Sunil Mathur ,
Rs.300000/-, Niharika Mathur Rs.800000/-,
Malvika Mathur Rs.300000/-, Niru Mathur
Rs.700000/-, Dolly Mathur Rs.300000/-. The
accounts of above amounts are not cleared
and they have not returned the amounts.
2. Karni Bhavarsha serving in RTO, Mandar
Border, and Rajkuar G. serving in RTO had
launched company and amount is given in
their RP Powertech company and total
amount comes to Rs.3723200/-.
3. Vijaysinh Bhati who has committed most
cheating and fraud with me. I am in credit of
Rs.14700000 (Rupees one crore forty seven
lakhs only). From this person. I am also in
credit of Rs.1,50,000/- from Chandravirsinh
Bhati and in credit of Rs.10,00,000 from
Padam Bhati. They have taken my CRETA car
bearing RT No.6797 and they are not giving
my car back. It is requested to do needful.”
The FIR records :-
“There is signature in English. The name
Patel Shaileshkumar Chimanlal is written in
gujarati under the signature. The names of
Padam Bhati, Chandravirsinh Bhati, Dolly
Mathur, Niru Mathur , Malvika Mathur ,
Niharika Mathur, Sunil Mathur, Pramod
Dadhichi, Anil Mathur, PK Powertech,
Kamalpal Mineral Pvt. Ltd., Leena
Computerized Ledger Statements are affixed
with staple pin. These words are written in
the handwriting of Shaileshkumar. I know the
handwriting. I had given this chit to
Apurvabhai in the office. He had read over
480 I October 2022
the said chit. He told me that this is suicide
note of Shaileshkumar.
The name Pramod Dhidhasi is written in the
suicide note but the real name is Pramod
Dadhichi. That money was given to all
persons through Bank except Vijaysinh.
Kamalpal Minerals Pvt. Limited of Vijaysinh
was given Rs.18,52,000/.”
In the FIR, it was alleged that the deceased had been
making phone calls to the accused persons calling
upon them to return his money, but they did not do
so. The accused had cheated the deceased of
Rs.2,35,73,200/-. The deceased was in acute financial
crunch and, therefore, constrained to take his own life.
In Court, it was submitted that the parties had
amicably resolved their disputes. In support of such
submission, affidavits of Settlement of Disputes,
signed by the complainant and other family members
of the deceased were placed on record.
The High Court held:
“9. Since now, the dispute with reference to
the impugned FIR is settled and resolved by
and between parties which is confirmed by
the original complainant through their learned
advocate, the trial would be futile and any
further continuation of proceedings would
amount to abuse of process of law .
Therefore, the impugned FIR is required to
be quashed and set aside.
10. Resultantly, the applications are allowed.
The impugned FIR being No. C.R.No. I-
11209016200112 of 2020 registered with
Himmatnagar ‘A’ Division Police Station,
District Sabarkantha and all other
consequential proceedings arising out of said
FIR are hereby quashed and set aside qua the
applicants.”
By the common order dated 29.07.2021, also impugned
in these appeals, the prayer of the appellant for
recalling the order dated 20.10.2020 was declined.

Against the judgment of the High Court, special leave
petition was filed. The impugned orders of the High
Court were set aside.
OPERATIVE PART
“In our considered opinion, the Criminal Proceeding
cannot be nipped in the bud by exercise of
jurisdiction under Section 482 of the Cr. P.C. only
because there is a settlement, in this case a monetary
settlement, between the accused and the complainant
and other relatives of the deceased to the exclusion
of the hapless widow of the deceased. As held by the
three-Judge Bench of this Court in Laxmi Narayan &
Ors. (supra), Section 307 of the IPC falls in the
category of heinous and serious offences and are to
be treated as crime against society and not against
the individual alone. On a parity of reasoning, offence
CRIM INAL LAW S
under section 306 of the IPC would fall in the same
category. An FIR under Section 306 of the IPC cannot
even be quashed on the basis of any financial
settlement with the informant, surviving spouse,
parents, children, guardians, care-givers or anyone
else. It is clarified that it was not necessary for this
Court to examine the question whether the FIR in this
case discloses any offence under Section 306 of the
IPC, since the High Court, in exercise of its power
under Section 482 CrPC, quashed the proceedings on
the sole ground that the disputes between the accused
and the informant had been compromised.”
Reference: Supreme Court. Daxaben Vs. The
State of Gujarat & Ors., Criminal Appeal No.
32529 of 2022 (Arising out of SLP (Crl.) No.
1132-1155 of 2022) dt. 29.07.2022.
—————

IN B R IE F
Discretion needs to be exercised only in rare instances and there ought to be good reasons for
dispensing with presence. Mahesh Kumar Kejriwal & Anr. Vs. Bhanuj Jindal & Anr., Petition for Special
Leave to Appeal (Crl.) No. 3382 of 2022 (SC).
Expression “reasonable grounds” means credible and plausible grounds for Court to believe that
accused person is not guilty of alleged offence. Narcotics Control Bureau Vs. Mohit Aggarwal, Criminal
Appeal Nos. 1001-1002 of 2022 (SC).
Failure of relationship cannot be ground for lodging FIR for offence under Section 376(2)(n) IPC –
Grant of anticipatory bail. Ansaar Mohammad Vs. State of Rajasthan & Anr., Criminal Appeal No. 962 of 2022
(SC).
Full discretion to Trial Court as well as Appellate Court to order sentences to run concurrently in case
of conviction for two or more offences. Malkeet Singh Gill Vs. State of Chhattisgarh, Criminal Appeal No.
915 of 2022 (SC).
Books of Account of company can be treated as acknowledgment of liability in respect of debt payable
to financial creditor. Asset Reconstruction Company (India) Ltd.Vs. Tulip Star Hotels Ltd. & Ors., CivilAppeal
Nos. 84-85 of 2020 (SC).
Mandatory previous sanction as required under Armed Forces (Special Powers) Act, 1958 not obtained
– Stay on criminal proceedings pursuant to FIR/Final Report against Army Officers. Rabina Ghale & Anr. Vs.
Union of India & Ors., Writ Petition (Crl.) No. 265 of 2022 (SC).

www.lawteller.com I October 2022 I 481

CRIM INAL LAW S
LONG DELAY GIVES RISE TO UNNECESSARY
SPECULATIONS
A Bench of Justices M.R. Shah and B.V. Nagarathna
of the Supreme Court held it is always advisable that
High Court delivers the judgment at the earliest and
within reasonable time after the judgment is reserved
because long delay gives rise to unnecessary
speculations in the minds of the parties.
The Bench held the manner in which High Court has
quashed FIR No. 260 of 2018 shows that it had
conducted a mini trial, which was impermissible.
Allegation of missing of two trucks was notably the
beginning of the investigation. Even during the
investigation, it was alleged that earlier also a number
of trucks, transporting contraband goods, went
missing. High Court had itself directed further
investigation by CB-CID with respect to FIR No. 227
of 2019 while opining that the allegations were very
serious. Thus, by quashing FIR No. 260 of 2018, High
Court restricted the scope of investigation. High Court
failed to consider the allegation of larger conspiracy
and that both the FIRs were interconnected and part
of main conspiracy which was very serious, if found
to be true.
The respondent no.4 herein M/s. United Breweries
Limited is engaged in manufacture of sale of beer
which is regulated and governed by the Excise Act and
other relevant clause of the State. Respondent No.5 –
M/s Beehive Alcoveb is the licenced Firm having F.L.
2B licence, engaged in the business of beer etc. by
purchasing the goods from the company, Respondent
No.5 Sanjeet Jaiwal – original informant of FIR No.260
of 2018, Manager of the company – M/s Beehive
Alcoweb. On 07.09.2018 at 7.56 p.m. respondent no.5
sent a demand order at 7.56 p.m. and on 11.09.2018
through email for delivery of three trucks of beer to
respondent No.4 – M/s United Breweries Limited and
transferred a total sum of Rs.92,98,902/- to deliver two
trucks in Lucknow and one in Varanasi. The
482 I October 2022
Respondent no.4 directed its transporter SICAL
Logistics Limited Company to arrange a vehicle and
deliver goods to Respondent no.5/the informant. That
in furtherance of the same, M/s. SICAL Logistics
Limited Company contacted another transport
company, who in turn, hired two trucks vide truck
registration numbers UP-32HN/3209 and UP-32FN/
8048 for delivery of consignment of respondent no.5/
informant to Lucknow after obtaining transfer permit
FL-36 from Excise Department. The trucks were enabled
with GPS systems as maintained by the Excise
Department Track and Trace policy.
The consignment of beer was dispatched on
11.09.2018 through the aforesaid two trucks. The GPS
devices of both the trucks lost contact with GPS
tracking agency on 13.09.2018 after 11.41 pm. On
13.09.2018 at about 16.40 hrs. when the transporter
contacted through his mobile phone to driver Mukesh
on his mobile phone, he was informed that the
vehicles were standing near Junabganj, Lucknow at
Chauhan Dhaba (outer area of Lucknow) due to “no
entry”. It appears that thereafter neither the tracer
could be contacted nor the vehicles could be traced.
With no positive response from the supplier ,
respondent no.1 and the goods not being delivered
though full payment was made and the goods being
missing midway, respondent no.5 lodged the present
FIR bearing Case Crime No.260 of 2018 for the offence
under Sections 406 & 420 IPC. In the meantime, the
Manager of M/s SICAL Logistic also lodged a
separate FIR bearing Case Crime No.390 of 2018 under
Sections 420 & 406 IPC PS Badalpur, Gautam Budha
Nagar against two truck drivers and one unknown
person. After the conclusion of the investigation, the
Investigating Officer filed the chargesheet against
respondent no.5 in Case Crime No.26 of 2018 dated
10.02.2018 and thereafter the Magistrate passed the
 CRIM INAL LAW S
summoning order dated 13.02.2019. Even subsequently Criminal Case No.5694 of 2019 (arising out of Case
the Investigating Officer PS Badalpur has also filed the Crime No.260 of 2018 PS – Husainganj, District –
chargesheet in the case arising out of Case Crime Lucknow).
No.227 of 2019 PS – Banthra, District Lucknow (Old Feeling aggrieved the State as well as the original
No.390 of 2018). Thereafter goods were delivered to informant preferred special leave petitions.
the original informant. Also, respondent no.1 to
The Supreme Court accepted the appeals.
respondent no.4 herein, accused in Criminal Case
No.5694 of 2019 (arising out of FIR No.260 of 2018)
OPERATIVE PART
approached the High Court by way of an application
under Section 482 Cr.P.C. being Case Crime No.2005 “Having gone through the impugned judgment and
of 2019 seeking the following main reliefs: order passed by the High Court by which the High
Court has set aside the criminal proceedings in
“(i) set aside the impugned summoning order
exercise of powers under Section 482 Cr .P.C., it
dated 13.02.2019 passed in Criminal Case No.
appears that the High Court has virtually conducted
5694/2019, Case Crime No. 0260/2018, under
a mini trial, which as such is not permissible at this
Section 406, 420, 467, 468, 471, 120-B I.P.C.,
stage and while deciding the application under
Police Station-Husainganj, district Lucknow.
Section 482 Cr.P.C. As observed and held by this
(ii) set aside the impugned charge sheet dated
Court in a catena of decisions no mini trial can be
10.02.2019, filed by the Investigating Officer
conducted by the High Court in exercise of powers
in Case Crime No. 0260/2018, under Section
under Section 482 Cr.P.C. jurisdiction and at the
406, 420, 467, 468, 471, 120-B I.P.C., Police
stage of deciding the application under Section 482
Station-Husainganj, District-Lucknow.
Cr.P.C., the High Court cannot get into appreciation
(iii) set aside the entire proceedings of the of evidence of the particular case being considered.”
Case Crime No. 0260/2018, under Section 406,
420, 467, 468, 471, 120-B I.P.C., Police Station-
Reference: Supreme Court. State of Uttar
Husainganj, District-Lucknow.”
Pradesh & Anr. Vs. Akhil Sharda & Ors.,
By the impugned judgment and order the High Court
Criminal Appeal No. 840 of 2022 dt.
in exercise of powers under Section 482 Cr.P.C. has
11.07.2022.
quashed the entire criminal proceedings including the
—————
chargesheet and the summoning order arising out of

IN B R IE F
Mere acceptance of rent by landlord after expiry of period of lease would not amount to waiver of
termination of lease. Sri K.M. Manjunath Vs. Sri Erappa G. Dead Through Lrs., Petition for Special Leave to
Appeal (C) No. 10700 of 2022 (SC).
Mother can give surname of second husband to child after death of biological father. Mrs. Akella
Lalitha Vs. Sri Konda Hanumantha Rao & Anr., Civil Appeal Nos. 6325-6326 of 2015 (SC).
Municipal tax apportioned can be recovered as rent. EIH Limited Vs. Nadia A. Virji, Civil Appeal Nos.
4797-4799 of 2022 (SC).

www.lawteller.com I October 2022 I 483

 TOO TRUE
“Nobody can say that essential part or practice of one’s religion has changed from a particular date or by
an event. Such alterable parts or practices are definitely not the “core” of religion where the belief is based
and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or
practices. This view is further substantiated by the fact that where a practice changes with the efflux of
time, such a practice cannot be regarded as a core upon which a religion is formed. There has to be
unhindered continuity in a practice for it to attain the status of essential practice.”
Dipak Misra, C.J.
in Indian Young Lawyers Association Vs. State of Kerala, Writ Petition (C) No. 373 of 2006.

“Notwithstanding the easy access to information technology for research today, as compared to the
plethora of legal Digests which had to be studied earlier, reliance was placed upon a judgment based on an
expressly repealed Act by the present Act, akin to relying on an overruled judgment. This has only resulted
in a waste of judicial time of the Court, coupled with an onerous duty on the Judges to do the necessary
research. We would not be completely wrong in opining that though it may be negligence also, but the
consequences could have been fatal by misleading the Court leading to an erroneous judgment.”
Navin Sinha, J.
in Lal Bahadur Gautam Vs. State of UP, Civil Appeal No. 4794 of 2019.
“Our Constitution places the individual at the heart of the discourse on rights. In a constitutional order
characterised by the rule of law, the constitutional commitment to egalitarianism and the dignity of every
individual enjoins upon the Court a duty to resolve the inherent tensions between the constitutional
guarantee of religious freedom afforded to religious denominations and constitutional guarantees of dignity
and equality afforded to individuals. There are a multiplicity of intersecting constitutional values and
interests involved in determining the essentiality of religious practices. In order to achieve a balance
between competing rights and interests, the test of essentiality is infused with these necessary limitations.”
Dr. D.Y. Chandrachud, J.
in Indian Young Lawyers Association Vs. State of Kerala, Writ Petition (C) No. 373 of 2006.
“Once standards are laid down by the legislature then those standards have to be followed. In items like
milk which is a primary food, under the Act, it is not necessary to also prove that the food item had become
unfit for human consumption or injurious to health. In cases of food coming under the Act, it is not
required to prove that article of food was injurious to health. In this case, the only question to be
determined is whether the article complies with standards laid down or not? If it fails to comply with the
standards then it will have to be treated as an adulterated article even if it is not rendered injurious to
health. Even marginal deviation from the prescribed standard cannot be ignored.”
Deepak Gupta, J.
in Raj Kumar Vs. State of UP, Criminal Appeal No. 1541 of 2019.
“Our society is governed by the Constitution. The values of constitutional morality are a non-derogable
entitlement. Notions of “purity and pollution”, which stigmatise individuals, can have no place in a
constitutional regime.”
Dr. D.Y. Chandrachud, J.
in Indian Young Lawyers Association Vs. State of Kerala, Writ Petition (C) No. 373 of 2006.

484 I October 2022

 TOO TRUE
“Natural resources of the country are not meant to be consumed only by the present generation of men or
women of the region where natural resources are deposited. These treasures of nature are for all
generations to come and for intelligent use of the entire country. The present generation owes a duty to
preserve and conserve the natural resources of the nation so that it may be used in the best interest of
coming generations as well and for the country as a whole.”
Ashok Bhushan, J.
in State of Meghalaya Vs. All Dimasa Students Union, Civil Appeal No. 10720 of 2018.
“Once opportunity has been granted to the respondent, he is not entitled to another opportunity on the
ground of compassion. The only reasoning given by the Division Bench is “justice demands” that the
respondent be given one last opportunity to place his version. The respondent has lost his chance to put
his version before the competent authority when called upon by the authority to do so. Time and again
opportunity of hearing cannot be granted on the pretext of justice. The delaying tactics cannot be rewarded
in such a manner. Once the respondent has failed to avail of the opportunity of hearing granted, the Bank
cannot be directed to give another opportunity for the sake of justice.”
Hemant Gupta, J.
in SBI Vs. Atindra Nath Bhattacharyya, Civil Appeal No. 5842 of 2019.
“Notings recorded in the official files, by the officers of the Government at different levels, and even the
Ministers, do not become a decision of the Government, unless the same are sanctified and acted upon, by
issuing an order in the name of the President or Governor, as the case may be, and are communicated to the
affected persons.”
Indu Malhotra, J.
in Nareshbhai Bhagubhai Vs. Union of India, Civil Appeal No. 6270 of 2019.
“Our law must take into account advances in medical science and ensure that a patient-centric is adopted.
The standard of care as enunciated in Bolam, (1957) 1 WLR 582 case must evolve in consonance with its
subsequent interpretation by English and Indian courts. Significantly, the standard adopted by the three-
Judge Bench of the Supreme Court in Jacob Mathew, (2005) 6 SCC 1 includes the requirement that the
course adopted by the medical professional be consistent with “general and approved practice” and we are
bound by this decision.”
Dr. D.Y. Chandrachud, J.
in Arun Kumar Manglik Vs. Chirayu Health and Medicare Pvt. Ltd. & Anr.,
Civil Appeal Nos. 227-228 of 2019.
“Power under Article 142 of the Constitution cannot be exercised against the specific provision of law.
Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 lays down a minimum sentence of six
months. Considering the bane of adulteration and the deleterious effect of adulteration and sub-standard
food on the health of the citizens (especially children when milk is involved), the legislature provided a
minimum sentence of six months. Passage of time can be no excuse to award a sentence lower than the
minimum.”
Deepak Gupta, J.
in Raj Kumar Vs. State of UP, Criminal Appeal No. 1541 of 2019.

www.lawteller.com I October 2022 I 485

D EBT RECOVERY
ORDER UNDER SECTION 14 BE MADE WITHIN
MAXIMUM PERIOD OF 60 DAYS
A Bench of Justices M.R. Shah and B.V. Nagarathna
of the Supreme Court held huge number of applications
under Section 14 of Securitisation and Reconstruction
of Financial Assets and Enforcement Security Interest
Act, 2002 are pending. Order under Section 14 is
required to be made within maximum period of 60 days
from the date of the application. If CMM/DM alone
decide the applications, it would be impossible to
decide all applications within the stipulated time.
Hence, interpreting the expression CMM/DM to
include Ad.CMM and Ad. DM, would be purposive
interpretation to achieve the object and purpose of the
SARFAESI Act.
The Supreme Court held as per procedure stated in
Section 14, a secured creditor , desirous of taking
possession of secured assets, must approach the
Chief Metropolitan Magistrate (CMM)/ District
Magistrate (DM) by way of an application in writing.
As soon as an application is received, CMM/DM is
expected to pass an order , after verification of
compliance of all formalities by the secured creditor,
to take possession of the secured assets and
documents relating thereto and to forward the same
to the secured creditor at the earliest opportunity .
CMM/DM has to pass the order within 30 days from
the date of application which can be extended for
such further period but not exceeding in aggregate,
60 days. He cannot brook delay. Thus, steps taken by
CMM/DM are ministerial acts. No element of quasi
judicial function is involved in such power.
The Bench held now by virtue of Section 14(1A),
inserted by Act 1 of 2013, while exercising powers
under Section 14, District Magistrate or Chief
Metropolitan Magistrate may authorise any officer
subordinate to him to take possession of assets and
486 I October 2022
documents relating thereto and forward such assets
and documents to the secured creditor. It is open to
the CMM/DM to appoint an advocate and authorise
him/her to take possession of the secured assets and
documents relating thereto and to forward the same
to the secured creditor under Section 14(1A). Sub
Section (1A) is in the nature of an explanatory
provision and it merely restates the implicit power of
the CMM/DM in taking services of any officer
subordinate to him. Insertion of Sub Section (1A) does
not invest a new power for the first time in the CMM/
DM.
Respondent No. 1 herein – Financial Institution –
Capital First Limited is the secured creditor (“secured
creditor”) within the meaning of Section 2(1)(zd) of the
SARFAESI Act. That the secured creditor instituted
proceedings under the SARFAESI Act for recovery of
the amount due and payable by the appellant herein
– borrower. The said proceedings initiated under
Section 13(4) of the SARFAESI Act, the secured
creditor proceeded to take possession of the secured
asset. However, the borrowers refused to handover the
physical possession of the secured asset. The secured
creditor took symbolic possession of the secured
asset on 21.01.2017 and affixed the possession notice
at the said secured asset. That on 17.03.2017, the
secured creditor filed an application under Section 14
of the SARFAESI Act with the Chief Metropolitan
Magistrate Court, Esplanade, Mumbai, inter-alia,
praying for assistance from the Chief Metropolitan
Magistrate in taking physical possession of the
secured asset. The matter was adjourned from time to
time and lastly, it was adjourned to 29.07.2017. As
mandated by second proviso to sub-section (1) of
Section 14 of the SARFAESI Act, the application was

required to be disposed of within a period of 30 days
and as the application was not decided within the
period mandated by the statute, the secured creditor
moved an application for advancement. The said
application came to be dismissed by the Chief
Metropolitan Magistrate, inter-alia, on the ground that
the said application is a fresh application and many
old applications are pending. Therefore, the secured
creditor approached the High Court by way of the
present writ petition for an appropriate direction and
order directing the Chief Metropolitan Magistrate to
dispose of their cases/applications under Section 14
of the SARFAESI Act in a time bound manner.
That the Division Bench of the High Court issued
directions to the Chief Metropolitan Magistrate to
make an endeavour to dispose of the pending
applications as expeditiously as possible and
preferably within a period of thirty days from the date
of receipt of writ along with the order . The Chief
Metropolitan Magistrate vide communication dated
14.08.2017 brought to the notice of the High Court that,
“Even though, the SARFAESI Act, 2002 provides for
expeditious disposal of the applications filed under
Section 14 of the said Act, there are as many as 924
cases pending under the said Act as on 09.08.2017 on
the file of the Court of the Chief Metropolitan
Magistrate, Esplanade, Mumbai. Out of 924 cases, 509
cases are filed in the year 2017. However, there are 27
cases of the year 2014, 96 cases of the year 2015 and
291 cases of the year 2016, still pending for disposal.
As per the direction of the Hon’ble High Court,
preference should be given to the old pending cases
for disposing of the same. Therefore, the preference
is being given to the pending old cases rather than
fresh new cases.”
On receiving the aforesaid report, the High Court was
of the opinion that considering the volume of
applications filed under Section 14 of the SARF AESI
D EBT RECOVERY
Act and pendency of such applications, the Chief
Metropolitan Magistrate, who is an authority under
Section 14 of the SARFAESI Act cannot decide such
applications within a time bound period in terms of the
first and second proviso to Section 14(1) of the
SARFAESI Act. After opining so, the High Court
proceeded to consider the issue as to how to minimize
the pendency. In this context, after considering the
relevant provisions of the SARFAESI Act as well as
Section 17(2) and Section 19 of the Code of Criminal
Procedure, the High Court has observed that the
Additional Chief Metropolitan Magistrate (“ACMM”),
being invested with all the judicial powers of the Chief
Metropolitan Magistrate, can be considered at par with
the Chief Metropolitan Magistrate. The High Court
has also observed that so far as the exercise of judicial
powers are concerned, the Chief Metropolitan
Magistrate and the Additional Chief Metropolitan
Magistrate stand on the same footing and one cannot
be said to be either inferior or subordinate to the other.
It is further observed and held that as the status of
Chief Metropolitan Magistrate and Additional Chief
Metropolitan Magistrate is same and identical, the
Additional Chief Metropolitan Magistrate can exercise
the powers under Section 14 of the SARFAESI Act.
While holding so, the Division Bench of the High
Court has heavily relied upon the decisions of the
Division Bench of the High Court in the case of State
of Maharashtra Vs. Shanti Prasad Jain in Criminal
Reference No. 9 of 1977 decided on 29.09.1977 by
which, on a reference the Division Bench of the High
Court held and concluded that the Chief Metropolitan
Magistrate and the Additional Chief Metropolitan
Magistrate are courts of the same status having the
same or identical jurisdiction so far as the trial of
criminal cases is concerned. Further, by taking into
consideration the fact that the powers of the Chief
Metropolitan Magistrate under Section 14 of the
www.lawteller.com I October 2022 I 487
D EBT RECOVERY
SARFAESI Act being purely executionary in nature
and having no element of quasi-judicial functions
ultimately it is observed and held by the High Court
as under:
“(I) The District Magistrate, Chief
Metropolitan Magistrate is not a persona
designata for the purposes of Section 14 of
the SARFAESI Act.
(II) The expression “District Magistrate” and
the “Chief Metropolitan Magistrate” as
appearing in Section 14 of the SARFAESI Act
shall deem to mean and include Additional
District Magistrate and Additional Chief
Metropolitan Magistrate for the purposes of
Section 14 of the SARFAESI Act.”
Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by High Court, appeal was
filed in Supreme Court. The Supreme Court dismissed
the application.
OPERATIVE PART
“The issue/question may also be considered from
another angle. It cannot be disputed and even judicial
notice can be taken of the fact that the CMMs and/or
even the DMs are required to perform so many other
duties under different statutes. They have to perform
many administrative duties also. District Magisters
are in overall administrative control of their
jurisdiction/district. Similarly, CMMs ar e also
required to perform administrative duties and they
have also to deal with the other cases/criminal trials
and many trials under special statutes also. It cannot
be disputed that the litigations under the SARFAESI
Act and proceedings and/or applications under
Section 14 of the SARFAESI Act are increasing. Even
as noticed by the High Court in the impugned
judgment and order, as on 09.08.2017, 926 cases were
pending under Section 14 of the SARFAESI Act before
488 I October 2022
only one CMM. Therefore, a number of applications
under Section 14 are pending. It also cannot be
disputed that the SARF AESI Act pr ovides for
expeditious disposal of the applications filed under
Section 14 of the SARFAESI Act. As per, second proviso
to Section 14, suitable orders for the purpose of
taking possession of the secured assets are required
to be passed within a maximum period of sixty days
from the date of the application. Therefore, if the
submission on behalf of the appellants that only the
concerned CMM/DM alone would have jurisdiction
to decide the applications under Section 14 of the
SARFAESI Act is accepted, in that case, it will be
practically impossible for the concerned CMM/DM to
decide the application under Section 14 of the
SARFAESI Act expeditiously and within the time
stipulated under second proviso to Section 14 of the
SARFAESI Act. If the interpretation which we propose
that, the District Magistrate/Chief Metropolitan
Magistrate under Section 14 of the SARFAESI Act
includes the Additional District Magistrate/
Additional Chief Metropolitan Magistrate, the same
can be said to be a purposive interpretation to
achieve the object and purpose of proceedings under
the SARFAESI Act, mor e par ticularly when as
observed hereinabove, the orders to be passed under
Section 14 of the SARFAESI Act are ministerial steps
and to assist the secured creditor in getting/obtaining
the possession of the secured property. Thus, there is
no element of exercise of adjudicatory powers under
Section 14 of the SARFAESI Act. All these aspects have
been considered in detail by the High Court in the
impugned judgment and order.”
Reference: Supreme Court. M/s R.D. Jain and
Co. Vs. Capital First Ltd. & Ors., CivilAppeal
No. 175 of 2022 dt. 27.07.2022.
—————

JUDGMENTS BY TWO JUDGES BENCH FOUND
CONFLICTING; ISSUE OF LAW REFERRED
TO A LARGER BENCH
A Bench of Justices S. Abdul Nazeer and J.K.
Maheshwari of the Supreme Court held as conflicting
judgments have been rendered by the benches having
strength of two Judges, judicial decorum demands that
the issue of law be referred to a larger bench, to avoid
confusion and to maintain consistency. Therefore,
questions as to which of the two conflicting views is
correct and whether on similar set of allegations of fact,
accused can be tried for an offence under Negotiable
Instruments Act and also for offences under Indian
Penal Code, unaffected by prior conviction or acquittal
and, whether bar of Section 300(1) Cr.P.C. would apply
to such trial, are referred to a larger bench for decision.
The brief facts necessary for the instant appeal are
that J. Vedhasingh (the appellant) herein was working
as a Civil Engineer in Saudi Arabia. On his return back
to India in the year 2011, he purchased a site from
respondent no.2 who is the father of respondent no.1
in Coimbatore. Apart from this, the respondents owned
7 other house sites in total in V.C.K. Layout, Trichy
Road, Coimbatore City, which all were mortgaged to
Tamil Nadu Industrial Investment Corporation, way
back from 12.10.2006. Appellant contended that the
respondents approached and asked him to invest
money for the development of the land of the said 7
sites and assured that profit shall be divided amongst
the appellant and respondents. Pursuant to it a profit-
sharing agreement was executed between the parties.
The appellant made the investment of a sum of
Rs.62,32,754/-, but neither profit was shared nor any
piece of land was given to the appellant.
Consequently, the appellant asked to repay the
amount. Under guise of assurance of repayment by
respondent no.1, the appellant did not lodge any
criminal prosecution as per his request. The
CRIM INAL LAW S
respondent no.1 handed over a cheque dated
09.09.2015 for an amount of Rs.87,00,000 in lieu of
repayment of principal sum and interest.
On presenting the said cheque to the bank it was
dishonored on account of insufficient funds on
09.09.2015. Being aggrieved, a demand notice was
issued on 30.10.2015 and complaint under Section 138
of Negotiable Instruments Act, 1881 (“NI Act”) being
S.T.C. No.792 of 2015 renumbered as C.C. No.199 of
2016 on the file of Fast Track Magistrate No.1 of
Coimbatore (“138 Proceedings”) was lodged by the
appellant on 07.12.2015. Prior to initiating 138
proceedings, the appellant lodged a complaint under
section 156(3) Cr.P.C being CMP No. 5083 of 2015
before Judicial Magistrate No. III Coimbatore on
30.10.2015. The Magistrate directed respondent no. 5
to register the FIR but by filing a report dated
29.01.2016, it was said that no offence is made out
against the respondents. The appellant challenged the
same by filing CRL.O.P. No. 6766 of 2016 before the
High court of Madras and also prayed for direction
against respondent no.5 to conduct fresh
investigation. The High Court disposed of the same
with an observation that the appellant may raise
objection on closure report by way of protest petition.
In pursuance thereof, the appellant filed a protest
petition being Crl.M.P. No. 3891 of 2016, which was
allowed by the Magistrate vide order dated 24.09.2016
directing the respondent no. 5 to register the case
against the respondent no. 1 to 4 and to complete the
investigation. Thereafter only, the respondent no.5
registered the case against respondent no.1 to 4 at
Crime No.49 of 2016 for the offences under Sections
120B, 406, 420 and 34 of IPC on 01.10.2016, and after
investigation, challan was filed before the competent
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CRIM INAL LAW S
Magistrate on which cognizance was taken by him.
The respondents, being aggrieved by the same, filed
CRL.O.P. No. 6750 of 2017 before the High Court of
Madras for quashment of the aforesaid proceedings.
The High Court by the impugned order allowed the
said petition and quashed the proceedings taking into
consideration that proceedings under Section 138 of
the N.I. Act pertaining to the same cause of action and
on the same facts and grounds are pending, prior to
the registration of the present proceedings. It was
observed that, looking to the allegations made in the
FIR, only offence under section 138 of NI Act can be
made out and continuance of the present proceedings
for offences under sections 406, 420, 120B and 34 of
IPC would amount to abuse of process of the Court.
The said order passed by the High Court is assailed
by the appellant in the instant appeal.
Against the judgment of High Court special leave
petition was filed. The Supreme Court referred it to a
larger Bench for decision.
OPERATIVE PART
“On perusal of the judgment of Sangeetaben
Mahendrabhai Patel [(2012) 7 SCC 621] relied in
the case of M/S. V.S. Reddy and Sons (Crl. Appeal No.
1285 of 2015) by the appellant and the judgments
relied upon by the respondents in the case of G. Sagar
Suri [(2000) 2 SCC 636] and Kolla Veera Raghav
Rao [(2011) 2 SCC 703] as afore quoted, the facts
and the allegations were similar and that too the
prosecution for the offences under Section 138 of the
NI Act and, under Sections 406 and 420 of the IPC
were also similar. In the judgment of Sangeetaben
Mahendrabhai Patel (supra) it was held that the
requirement to prove an offence under the NI Act and
an offence under the IPC is different, and it was
observed that there may be some overlapping of facts
but the ingredients of the offences are entirely
different, therefore, the subsequent cases are not
barred by any statutory provisions. While in the case
of G. Sagar Suri (supra) and Kolla Veera Raghav Rao
490 I October 2022
(supra), the Court concluded that as per Section
300(1) Cr.P.C. no one can be tried and convicted for
the same offence or even for a different offence on the
same facts, therefore, the prosecution under Section
420 of the IPC is barred by Section 300(1) of Cr.P.C
and accordingly liable to be quashed. It is to observe
that in the case of Sangeetaben Mahendrabhai Patel
(supra) the judgments of G. Sagar Suri (supra) and
Kolla Veera Raghav Rao (supra) have been referred
but distinguished on the ground that it was not raised
and decided that ingredients of both offences were not
same, and the bar of Section 300(1) of Cr.P.C. would
not attract. It is relevant to note here that the
judgments cited by both the parties are rendered by
benches having the strength of two Judges. In our
considered view, the bench of this Court in the case
of Sangeetaben Mahendrabhai Patel (supra) followed
in M/s. V.S. Reddy and Sons (supra) has taken a
different view from the previous judgments of G. Sagar
Suri (supra) and Kolla Veera Raghav Rao (supra)
rendered by the bench of the same strength. The view
taken in both the cases are conflicting to each other.
Needles to observe that it is a trite law, if any issue is
decided in a previous judgment by a bench of the same
strength, conflicting view in the subsequent judgment
should not be rendered on the pretext that the issue
has not been raised or considered in the previous
judgment. In this regard the judgment in District
Manager, APSRTC, Vijaywada v. K. Sivaji, (2001) 2
SCC 135, Chandra Prakash v. State of U.P., 2002 AIR
SCW 1573 can be profitably referred whereby it is
observed that judicial decorum demands that if
judgments passed by two-judges’ bench of equal
strength are conflicting, the issue of law involved must
be referred to a larger bench as the same is desirable
to avoid confusion and maintain consistency of law.
In our view, the aforesaid judgments cited by the
respective parties are conflicting, however, to avoid
any further confusion and to maintain consistency, we
deem it appropriate to refer this issue for decision by
the larger bench to answer the following questions:

(1) Whether the ratio of the judgment, in the
case of G. Sagar Suri (supra) and Kolla Veera
Raghav Rao (supra) lay down the correct law?
or
The view taken in the case of Sangeetaben
Mahendrabhai Patel (supra) as followed in
M/s V.S. Reddy and Sons (supra) which is
subsequent and conflicting, lay down the
correct proposition of law?
CRIM INAL LAW S
(2) Whether on similar set of allegations of fact
the accused can be tried for an offence under
NI Act which is special enactment and also for
offences under IPC unaffected by the prior
conviction or acquittal and, the bar of Section
300(1) Cr.P.C. would attract for such trial?”
Reference: Supreme Court. J. Vedhasingh Vs.
R.M. Govindan & Ors., Criminal Appeal No.
2864 of 2022 dt. 11.08.2022.
—————

IN B R IE F
Evidence of star witness for prosecution cannot be relied upon as against other prosecution witnesses
themselves, which stood uncontroverted. Virendra Vs. State of Madhya Pradesh, Criminal Appeal No. 466 of
2018 (SC).
Not safe to convict accused solely on basis of identification for first time in Court. Amrik Singh Vs.
State of Punjab, Criminal Appeal No. 993 of 2012 (SC).
No appeal against conviction can be dismissed on ground that accused is absconding. Dhananjay
Rai @ Guddu Rai Vs. State of Bihar, Criminal Appeal No. 803 of 2017 (SC).
There has to be adequate material to fasten accused persons on basis of constructive liability as
common intention is nothing but rule of evidence. Shishpal @ Shishu Vs. The State (NCT of Delhi), Criminal
Appeal No. 1053 of 2015 (SC).
Peremptory directions affecting third party cannot be issued in anticipatory bail orders. Kanchan
Kumari Vs. State of Bihar & Anr., Criminal Appeal No. 1031 of 2022 (SC).
No mini trial can be conducted by High Court in exercise of powers under Section 482 Cr.P.C., 1973
jurisdiction and at stage of deciding application under Section 482 Cr.P.C., 1973. State of Uttar Pradesh & Anr.
Vs. Akhil Sharda & Ors., Criminal Appeal No. 840 of 2022 (SC).
Statements under Section 161 of Cr.P.C., 1973 may not be admissible in evidence, but are relevant in
considering prima facie case against accused in application for grant of bail in case of grave offence. Indresh
Kumar Vs. State of Uttar Pradesh & Anr., Criminal Appeal No. 938 of 2022 (SC).
Reduction of compensation – High Court not to proceed on basis of income drawn by deceased victim
approximately three years before accident ended her life. S. Chandrasekharan & Ors. Vs. M. Dinakar & Anr.,
Civil Appeal Nos. 4688-4689 of 2022 (SC).
Land proceedings get initiated from publication of notification. Haryana State Industrial and
Infrastructure Development Corporation Ltd. & Ors.Vs. Mr. Deepak Aggarwal & Ors., Civil Appeal Nos. ....
of 2022 (Arising out of SLP(C) Nos. 16631-16632 of 2018) (SC).

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ACCIDENTAL CLAIM
COMPENSATION UNDER THE HEAD LOSS OF
LOVE AND AFFECTION, NOT PERMISSIBLE
A Bench of Justices Hemant Gupta and Vikram Nath
of the Supreme Court ruled compensation under the
head loss of love and affection was not permissible
but compensation on account of spousal consortium
for wife and parental consortium for children was
admissible.
The Supreme Court held the rule of evidence to prove
charges in a criminal trial cannot be used while
deciding an application under Section 166 of the Motor
Vehicles Act, 1988, which is summary in nature. The
application has to be decided on the basis of evidence
led before it and not on the basis of evidence which
should have been or could have been led in a criminal
trial. There was no reason to doubt the veracity of
appellant No. 1’s statement, who suffered injuries in
the accident. Her primary concern was to take care of
her husband (deceased) than to lodge an FIR. She, in
her examination-in-chief, disclosed the car number of
the offending vehicle. Car owner and Insurance
Company had the opportunity to cross-examine her in
support of their stand that the vehicle number given
by her was not involved in the accident. In cross
examination, she deposed that she was brought to the
hospital in the offending vehicle. She deposed that
she was mentally disturbed and hospitalized, therefore,
she filed the complaints late. On the other hand, the
owner admitted that he had taken the vehicle on
superdari. He did not file any proceedings to quash
FIR against driver-Sanjay. Admittedly, in the bail
application form and surety bond, he stood surety for
the driver. He mentioned therein that accused was the
driver of his vehicle. He made no complaint of false
implication of his vehicle or the driver.
The Bench held since the appeal filed by the Insurance
Company was accepted, there was no occasion for
High Court to examine the question of enhancement
492 I October 2022
of compensation. In view of Constitution Bench
Judgment in Pranay Sethi’s case, appellants were
entitled to enhanced compensation particularly in
respect of future prospects and other damages.
Therefore, in exercise of powers conferred under
Article 142, Supreme Court recomputed the amount of
compensation and awarded Rs. 11,63,000/- alongwith
interest @ 7% p.a. from the date of filing of the claim
application till realization.
The deceased was driving motorcycle bearing No.
MH-20/AD-956 on 1.6.2007 when Maruti-800 Car
bearing No. MH-41/C-1777 came from the opposite
direction and dashed into the motorcycle of the
deceased as per the appellants. The deceased and
Janabai (appellant No. 1) received serious injuries. The
deceased was thus admitted in a Government Hospital
(Ghati Hospital). On 2.6.2007, the deceased was shifted
to Kamal Nayan Bajaj Hospital but he died on
25.6.2007. The cause of death was head injury.
Appellant No. 1 lodged a complaint on 2.7.2007 where
an FIR was registered against unknown vehicle and
unknown driver. It was on 20.8.2007, the registration
of the offending vehicle and the names of the driver
and the owner of the vehicle were informed.
Thereafter, the Police started its investigation and
charge sheeted the driver Sanjay S/o Ramesh
Sonwane.
On account of death of the deceased, an application
under Section 166 of the Motor Vehicles Act, 1988 for
grant of compensation was filed on 8.5.2009. The
owner of the vehicle denied the accident. It was stated
by the owner in his written statement that the driver -
Sanjay was never engaged by him and there is no
relation of employer and employee between them. The
driver neither filed written statement nor appeared as
witness. The Insurance Company did not lead any

evidence.
After considering the evidence of appellant No. 1,
Janabai (PW-1) and the statement of owner -
Chudaman Vanji Patil, the Tribunal, in the absence of
any salary certificate, assessed the income of the
deceased as Rs.10,000/- and after deducting 1/3 rd
salary towards personal expenses, assessed the
monthly expenses as Rs.6,670/-. The multiplier of 11
was applied. A sum of Rs.2,000/- towards funeral
expenses, Rs.5,000/- towards loss of consortium,
Rs.2,500/- towards loss of estate was awarded, thus,
a total sum of Rs.8,90,000/- was assessed as
compensation.
The High Court noticed the fact that neither the owner
of the offending car nor the Insurance Company has
examined the driver to prove that the offending car was
not involved in the accident. It was further held that
appellant No. 1 - the injured pillion rider has lodged
report against unknown car driver on 2.7.2007 i.e., after
one month from the date of incident. In the FIR, there
is no mention that her injured husband was taken to
hospital in Maruti-800 bearing Registration No. MH-
41/C-1777 but the said vehicle was involved in the
accident was not disclosed. It was also found that the
married daughters of the deceased were not made party
to the claim petition, doubting the bona fides of the
appellants. Thus, doubting the statement of appellant
No. 1 regarding the accident, the appeal filed by the
Insurance Company was allowed and the claim petition
was dismissed.
Against the judgment of the High Court, special leave
petition was filed. The judgment of the High Court was
set aside. The appeal was allowed and compensation
of Rs. 11,63,000/- alongwith interest @ 7% p.a. was
directed to be paid..
OPERATIVE PART
“The appellant has claimed compensation on account
of love and affection as well on account of spousal
consortium for wife and for the parental consortium
ACCIDENTAL CLAIM
for the children in the calculation given to this Court
but in view of three Judge Bench judgment reported
as United India Insurance Company Limited v .
Satinder Kaur & Ors. [(2021) 1 1 SCC 780], the
compensation under the head on account of loss of
love and affection is not permissible but compensation
on account of spousal consortium for wife and for the
parental consortium for children is admissible. This
Court held as under:
“30. In Magma General Insurance Co. Ltd. v.
Nanu Ram [Magma General Insurance Co. Ltd.
v. Nanu Ram, (2018) 18 SCC 130 : (2019) 3
SCC (Civ) 146 : (2019) 3 SCC (Cri) 153] this
Court interpreted “consortium” to be a
compendious term, which encompasses
spousal consortium, parental consortium, as
well as filial consortium. The right to
consortium would include the company, care,
help, comfort, guidance, solace and affection
of the deceased, which is a loss to his family.
With respect to a spouse, it would include sexual
relations with the deceased spouse.
31. Parental consortium is granted to the child
upon the premature death of a parent, for loss
of parental aid, protection, affection, society,
discipline, guidance and training. Filial
consortium is the right of the parents to
compensation in the case of an accidental death
of a child. An accident leading to the death of a
child causes great shock and agony to the
parents and family of the deceased. The greatest
agony for a parent is to lose their child during
their lifetime. Children are valued for their love
and affection, and their role in the family unit.
32. Modern jurisdictions world over have
recognised that the value of a child’s consortium
far exceeds the economic value of the
compensation awarded in the case of the death
of a child. Most jurisdictions permit parents to
be awarded compensation under the loss of
consortium on the death of a child. The amount
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ACCIDENTAL CLAIM
awarded to the parents is the compensation
for loss of love and affection, care and
companionship of the deceased child.
33. The Motor Vehicles Act, 1988 is a beneficial
legislation which has been framed with the
object of providing relief to the victims, or their
families, in cases of genuine claims. In case
where a parent has lost their minor child, or
unmarried son or daughter, the parents are
entitled to be awarded loss of consortium under
the head of filial consortium. Parental
consortium is awarded to the children who lose
the care and protection of their parents in
motor vehicle accidents. The amount to be
awarded for loss consortium will be as per the
amount fixed in Pranay Sethi [National
Insurance Co. Ltd. v. Pranay Sethi, (2017) 16
SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2
SCC (Cri) 205].
34. At this stage, we consider it necessary to
provide uniformity with respect to the grant of
consortium, and loss of love and affection.
Several Tribunals and the High Courts have
been awarding compensation for both loss of
consortium and loss of love and affection. The
Constitution Bench in Pranay Sethi [National
Insurance Co. Ltd. v. Pranay Sethi, (2017) 16
SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2
SCC (Cri) 205] , has recognised only three
conventional heads under which
compensation can be awarded viz. loss of
estate, loss of consortium and funeral expenses.
In Magma General [Magma General
Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC
130 : (2019) 3 SCC (Civ) 146 : (2019) 3 SCC
(Cri) 153] , this Court gave a comprehensive
interpretation to consortium to include spousal
consortium, parental consortium, as well as
filial consortium. Loss of love and affection is
comprehended in loss of consortium.
35. The Tribunals and the High Courts are
directed to award compensation for loss of
consortium, which is a legitimate conventional
head. There is no justification to award
compensation towards loss of love and affection
as a separate head.”
Reference: Supreme Court. Janabai Wd/o
Dinkarrao Ghorpade & Ors. Vs. M/s I.C.I.C.I.
Lambord Insurance Company Ltd., Civil
Appeal No. 5220 of 2022 dt. 10.08.2022.
—————

IN B R IE F
Right available to judgement debtor is valuable right and last resort/opportunity to judgement debtor
to save his property. M/s R.S. Infra-Transmission Ltd. Vs. Saurinindubhai Patel & Ors., Civil Appeal No.
3469 of 2022 (SC).
SARFESI Act time limit of 45 days for filing application under Section 17 for enforcement of security.
Bank of Baroda & Anr. Vs. M/s Parasaadilal Tursiram Sheetgrah Pvt. Ltd. & Ors., Civil Appeal No. 5240 of
2022 (SC).
State Government or competent authority cannot permit its use for non-forest activities without prior
approval of Central Government. Narinder Singh & Ors. Vs. Divesh Bhutani & Ors., Civil Appeal No. 10294
of 2013 (SC).
Accused may not be convicted on deposition of sole child witness – There must be some further
evidence to connect accused with commission of offence. Hajabhai Rajashibhai Odedara Vs. State of Gujarat,
Criminal Appeal No. 644 of 2022 (SC).

494 I October 2022


INTERIM COMPENSATION CAN BE RECORDED
AS IF IT WERE A FINE
A Bench of Justices Uday Umesh Lalit (now Chief
Justice of India), S. Ravindra Bhat and Sudhanshu
Dhulia of the Supreme Court held the remedy for
failure to pay interim compensation as directed by the
Court has been provided by the Legislature. As per
Sub Section 5 of Section 143A of Negotiable
Instruments Act, 1881 interim compensation can be
recorded as if it were a fine. The provision nowhere
contemplates that an accused who had failed to
deposit interim compensation could be fastened with
any other disability including denial of right to cross-
examine the witnesses examined on behalf of the
complainant.
The Bench held it is well settled law that if a statute
prescribes a method or modality for exercise of power,
by necessary implication, other methods of
performance are not acceptable. Since the right to
cross-examine the respondent was denied to Noor
Mohammed (the appellant), the decisions of courts
below suffer from an inherent infirmity and illegality
and are set aside. Complaint case stands restored to
the file of Trial Court. The Court directed the appellant
to deposit 20% of the cheque amount as interim
compensation.
The instant proceedings arise out of Complaint Case
No. 244 of 2019 instituted by the Respondent herein
in respect of offence punishable under Section 138 of
the Negotiable Instruments Act, 1881 (‘the Act’) in the
court of the Senior Civil Judge & JMFC, Nagamangala,
submitting inter alia:
a) A cheque dated 25.02.2019 in the sum of
Rs.7,00,000/- was drawn by the Appellant in
favour of the Respondent towards repayment
of hand loan received by the Appellant from
the Respondent.
b) Said cheque was presented for
encashment on 01.03.2019 but was
CRIM INAL LAW S
dishonoured on account of “insufficient
funds”.
c) Statutory notice was issued by the
Respondent to the Appellant on 12.03.2019.
d) However, the Appellant failed to repay the
amount to the Respondent.
e) Consequently, the Appellant was guilty of
offence punishable under Section 138 of the
Act.
After the cognizance of the aforesaid complaint was
taken and the summons were issued, the Appellant
appeared before the concerned court through his
counsel on 16.08.2019. On the very same date, an order
was passed by the Trial Court directing the Appellant
to deposit 20% of the cheque amount as interim
compensation in terms of Section 143(A) of the Act
within 60 days. The period so granted, got over on
15.10.2019 and on the request of the Appellant further
extension of 30 days was granted; but no deposit was
made by the Appellant.
When the matter was taken-up for examination of
witnesses, an application was made on behalf of the
Appellant under Section 145(2) of the Act seeking
permission to cross-examine the Respondent. In view
of his failure to deposit the interim compensation as
directed, the application preferred by the Appellant
was found to be not maintainable and was dismissed
by the Trial Court vide order dated 25.10.2019.
By subsequent order dated 29.11.2019 the Complaint
Case was accepted by the Trial Court finding the
Appellant guilty under Section 138 of the Act. The
Trial Court directed the Appellant to pay fine in the
sum of Rs.7,00,000/-, in default whereof to undergo
simple imprisonment for six months. Out of the
aforesaid sum, Rs.5,000/- was to be remitted to the
State while the remaining amount of Rs.6,95,000/- was
directed to be made over to the Respondent as
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CRIM INAL LAW S
compensation under Section 357 of the Criminal
Procedure Code, 1973 (‘the Code’).
The Appellant being aggrieved, preferred Criminal
Appeal No. 190 of 2019 in the court of V Addl. District
and Sessions Judge, Mandya, which appeal however
was dismissed by the Appellate Court by its order
dated 28.10.2020. The order of conviction and sentence
passed by the Trial Court was thus affirmed. During
the course of its order one of the points raised for
consideration was whether the Trial Court had given
sufficient opportunity to the Appellant to cross-
examine the Respondent. It was observed by the
Court:-
“18. It is relevant to mention here that in the
present appeal also, after filing of this appeal,
accused did not comply with the order of this
Court dated 30.12.2019 to deposit 20% of
cheque amount, hence, it discloses that the
accused is reluctant in complying with the
order of this Court. Under these
circumstances, this Court is of the opinion
that learned Magistrate has rightly refused
the prayer made by accused seeking
permission to cross-examine P.W.1 and
proceeded to pass impugned order”
The matter was carried further by the Appellant by
filing Criminal Revision Petition No. 39 of 2021 in the
High Court. The High Court by its judgment and order
dated 17.12.2021, which is presently under challenge,
dismissed said Criminal Revision Petition affirming the
view taken by the courts below. It was observed that
the conduct of the Appellant in not depositing the
interim compensation as directed, showed that he was
only interested in protracting the proceedings for one
reason or the other.
Against the judgment of the High Court special leave
petition was filed. The Supreme Court accepted the
appeal, set aside the decision of three Courts with
further direction that Complaint Case No. 244 of 2019
shall stand restored to the file of the Trial Court.
Further, the Trial Court was directed to permit the
496 I October 2022
appellant to cross-examine the respondent and then
take the proceedings to a logical conclusion.
OPERATIVE PART
“The concerned provision nowhere contemplates that
an accused who had failed to deposit interim
compensation could be fastened with any other
disability including denial of right to cross-examine
the witnesses examined on behalf of the complainant.
Any such order foreclosing the right would not be
within the powers conferred upon the court and
would, as a matter of fact, go well beyond the
permissible exercise of power.
Since the right to cross-examine the respondent was
denied to the Appellant, the decisions rendered by the
courts below suffer from an inherent infirmity and
illegality. Therefore, we have no hesitation in allowing
this appeal and setting aside the decisions of all three
courts with further direction that Complaint Case No.
244 of 2019 shall stand restored to the file of the Trial
Court. The Trial Court is directed to permit the
Appellant to cross-examine the Respondent and then
take the proceedings to a logical conclusion. With
these observations the appeal is allowed.
It is also directed that 20% of the cheque amount
namely Rs.1,40,000/- must be deposited by the
Appellant as interim compensation. The Registry is
directed to make over a sum of Rs.1,40,000/- to the
Trial Cour t i.e. Senior Civil Judge & JMFC,
Nagamangala, Karnataka. The amount shall be kept
in deposit in Complaint Case No. 244 of 2019 and
shall abide by such orders as the Trial Court may
deem appropriate to pass. Rest of the amount along
with accrued interest, if any, shall be made over to
the Appellant. The Registry shall take out a Pay Order
in the name of the Appellant which shall be handed
over to the learned counsel for the Appellant.”
Reference: Supreme Court. Noor Mohammed
Vs. Khurram Pasha, CriminalAppeal No. 7198
of 2022 (Arising out of SLP (Crl.) No. 2872 of
2022) dt. 02.08.2022.
—————

GRANT OF ANY STAY OF INVESTIGATION BE IN
RAREST OF RARE CASES
A Bench of Justices M.R. Shah and B.V. Nagarathna
of the Supreme Court held Supreme Court in M/s
Neeharika Infrastructure Pvt. Ltd.’s case (AIR 2021SC
1918), while emphasizing the right of the Investigating
Officer to investigate criminal proceedings, had stated
that grant of any stay of investigation and/or any
interim relief while exercising powers under Section 482
Cr.P.C. should only be in rarest of rare cases. Thus,
the impugned order was in teeth of and contrary to
not only the earlier judgment and order of the Supreme
Court but also to decision in M/s Neeharika
Infrastructure Pvt. Ltd.’s case. In view of this and the
submission of the accused that they do not invite any
further reasoned order, the impugned interim order was
quashed and set aside. Investigating Officer shall
complete the investigation at the earliest, held the
Court.
At the outset, it is required to be noted that Special
Criminal Application Nos. 9111 of 2019 and 9475 of
2019 were arising out of FIR being M. Case No. 2 of
2019 initiated by the appellant – original complainant.
Special Criminal Application No. 9112 of 2019 before
the High Court was arising out of FIR being M. Case
No. 3 of 2019. The private respondents herein –
original accused approached the High Court by way
of Special Criminal Application Nos. 9112 of 2019, 9111
of 2019 and 9475 of 2019 to quash the criminal
proceedings in exercise of powers under Article 226
of the Constitution read with Section 482 of the Cr.P.C.
The said special criminal applications were filed
before the High Court on 01.10.2019. Before any
further investigation was carried out by the
Investigating Officer, the Single Judge of the High
Court vide common order dated 10.10.2019 passed ex-
parte ad-interim order directed that there shall not be
any coercive steps taken against the original writ
CRIM INAL LAW S
petitioners – accused. The common interim order dated
10.10.2019 passed in the aforesaid special criminal
applications was the subject matter of special leave
petitions before Supreme Court. By order dated
09.12.2019 while issuing notice to the respondents
therein, Supreme Court stayed the interim order dated
10.10.2019.
In continuation of the order dated 09.12.2019, Supreme
Court passed a further order on 17.12.2019 and
observed that it shall be open for the accused –
respondents to seek anticipatory bail in accordance
with law, which may be considered expeditiously.
Nothing is on record to show that thereafter any
further proceedings were initiated by the respondents
– accused seeking anticipatory bail. The special leave
petitions filed before Supreme Court against the
common order dated 10.10.2019 were converted into
Criminal Appeal Nos. 1657, 1658, 1659 and 1660 of
2021. By a detailed judgment and order dated
17.12.2021 and after considering the decision of
Supreme Court in the case of M/s. Neeharika
Infrastructure Pvt. Ltd. Vs. State of Maharashtra and
Ors., AIR 2021 SC 1918, Supreme Court quashed and
set aside the interim orders dated 10.10.2019 passed
in respective special criminal applications. Despite the
above order passed by Supreme Court thereafter by
the impugned orders, while admitting the respective
special criminal applications, the Single Judge of the
High Court has again granted the impugned interim
reliefs staying further criminal proceedings and
resultantly staying further investigation. Feeling
aggrieved and dissatisfied by the impugned interim
order passed by the High Court granting interim relief
and staying further criminal proceedings and
resultantly staying further investigation, the original
complainant has preferred the present appeals.
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CRIM INAL LAW S
The Supreme Court allowed the appeals. and file appropriate report/charge sheet before the
OPERATIVE PART concerned Criminal Court having jurisdiction. It goes
without saying that the High Court shall consider the
“In view of the above stand taken by the learned
special criminal applications in accordance with law
Senior Advocates appearing on behalf of the original
and on its own merits. It is also observed that it will
writ petitioners before the High Court and the private
be open for the respective accused – original writ
respondents herein – original accused recorded
petitioners to move appropriate applications for
hereinabove and the specific submission made, we set
seeking anticipatory bail, as we have observed so in
aside the impugned order dated 14.02.2022 passed
our earlier order dated 17.12.2019 and, if filed, the
in respective Special Criminal Application Nos. 9112
same be considered in accordance with law and on
of 2019, 9111 of 2019 and 9475 of 2019. Meaning
its own merits.”
thereby, there shall not be any interim relief during
Reference: Supreme Court . Siddharth
the pendency of the aforesaid special criminal
Mukesh Bhandari Vs. The State of Gujarat &
applications. The Investigating Officer is directed to
Anr., Criminal Appeal No. 1044 of 2022 dt.
complete the investigation at the earliest and
02.08.2022.
preferably within a period of three months from today
—————

IN B R IE F
Suit for recovery instituted in Commercial Court violating mandate of Section 12A of Commercial Courts
Act would result in rejection of plaint. M/s Patil Automation Pvt. Ltd. & Ors. Vs. Rakheja Engineers Pvt. Ltd.,
Civil Appeal No. 5333 of 2022 (SC).
Appeal against every decision of ITAT would lie only before High Court within whose jurisdiction
Assessing Officer who passed the assessment order was situated. Pr. Commissioner of Income Tax-I,
Chandigarh Vs. M/s ABC Papers Ltd., Civil Appeal No. 4252 of 2022 (SC).
A person who avails of any service from Bank will fall under purview of ‘consumer’ as a consequence
of which, it would be open to such consumer to seek recourse to remedies provided under Consumer Protection
Act. Arun Bhatiya Vs. HDFC Bank & Ors., Civil Appeal Nos. 5204-5205 of 2022 (SC).
When complaint regarding sexual harassment is received, police officers cannot decline to register
FIR. XYZ Vs. State of Madhya Pradesh & Ors., Criminal Appeal No. 1184 of 2022 (SC).
Mere affirmation in context of revenue records and personal cultivation rights cannot be interpreted
as intention of owner to confer title. S. Kuldeep Singh & Anr. Vs. S. Prithpal Singh, Civil Appeal No. 81 of
2011 (SC).
After demise of first husband, mother being only natural guardian of child has right to decide surname
of child and also has right to give child in adoption. Mrs. Akella Lalitha Vs. Sri Konda Hanumantha Rao &
Anr., Civil Appeal Nos. 6325-6326 of 2015 (SC).
Entries in Books of Account/Balance sheet of company can be treated as acknowledgment of liability
in respect of debt payable to financial creditor within meaning of Section 18 of Limitation Act. Asset
Reconstruction Company (India) Ltd. Vs. Tulip Star Hotels Ltd. & Ors., Civil Appeal Nos. 84-85 of 2020
(SC).

498 I October 2022

 LAW FOR YOU
LEGITIMACY OF POLICY CAN BE
ASSESSED ON THE TOUCHSTONE
OF CONSTITUTIONAL PARAMETERS
Central Excise and Land Customs Department
Inspector (Group C posts) Recruitment Rules, 2002 (RR
2002) contained a specific provision for Inter-
Commissionerate Transfers (ICTs). There is an absence
of a provision comparable to Rule 4(ii) of RR 2002 in
RR 2016. On the contrary , Rule 5 of RR 2016
specifically stipulates that each Cadre Controlling
Authority (CCA) shall have its own separate cadre
unless directed by the Central Board of Excise and
Customs (CBEC). Any ICT would violate the unique
identity of each cadre envisaged in Rule 5. Any ICT
order would transgress a field which is occupied by
the rules which have been framed in terms of the
proviso to Article 309 of the Constitution. The circular
dated 20 September 2018 makes it absolutely clear that
RR 2016 does not have any provision for recruitment
by absorption and no ICT application could be
considered after the coming into force of RR 2016.
Transfer is a condition of service and it is within the
powers of the employer to take a policy decision either
to grant or not to grant ICTs to employees. The power
of judicial review cannot be exercised to interfere with
a policy decision of that nature. Supreme Court in the
exercise of judicial review cannot direct the executive
to frame a particular policy. Yet, the legitimacy of a
policy can be assessed on the touchstone of
constitutional parameters. Moreover, short of testing
the validity of a policy on constitutional parameters,
judicial review can certainly extend to requiring the
State to take into consideration constitutional values
when it frames policies. The State, consistent with the
mandate of Part III of the Constitution, must take into
consideration constitutional values while designing its
policy in a manner which enforces and implement those
values. In considering whether any modification of the
policy is necessary, they must bear in mind the need
for a proportional relationship between the objects of
the policy and the means which are adopted to
implement it. The policy above all has to fulfill the test
of legitimacy, suitability, necessity and of balancing
the values which underlie a decision making process
informed by constitutional values. Hence while
upholding the judgment of the Division Bench of the
Kerala High Court, Court leaves it open to the
respondents to revisit the policy to accommodate
posting of spouses, the needs of the disabled and
compassionate grounds.
Reference: Supreme Court. SK Nausad
Rahaman & Ors. Vs. Union of India & Ors.,
Civil Appeal No. 1243 of 2022.
OBJECT OF INSOL VENCY AND
BANKRUPTCY CODE
If the original applicants and the majority of the home
buyers are not permitted to close the CIRP
proceedings, it would have a drastic consequence on
the home buyers of real estate project. If the CIRP
proceedings are continued, there would be a
moratorium under Section 14 of the Insolvency and
Bankruptcy Code (IBC) and there would be stay of all
pending proceedings and which would bar institution
of fresh proceedings against the builder, including
proceedings by home buyers for compensation due
to delayed possession or refund. If the CIRP is
successfully completed, the home buyers like all other
creditors are subjected to pay outs provided in the
resolution plan approved by the Committee of Creditors
(COC). Most often, resolution plans provide for high
percentage of haircuts in the claims, thereby
significantly reducing the claims of creditors. Unlike
other financial creditors like banks and financial
institutions, the effect of such haircuts in claims for
refund or delayed possession may be harsh and unjust
on homebuyers. On the other hand, if the CIRP fails,
then the builder-company has to go into liquidation
as per Section 33 of the IBC. The homebuyers being
unsecured creditors of the builder company stand to
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LAW FOR YOU
lose all their monies that are either hard earned and
saved or borrowed at high rate of interest, for no fault
of theirs. In the present case, out of the total 128 home
buyers of 176 units, 82 homebuyers are against the
insolvency proceedings and the original applicants
have also settled their dispute with the appellant and
corporate debtor. Even the object and purpose of the
IBC is not to kill the company and stop/stall the
project, but to ensure that the business of the
company runs as a going concern.
Reference: Supreme Court. Amit Katyal Vs.
Meera Ahuja & Ors., Civil Appeal No. 3778 of
2020.
COURTS SHOULD BE RELUCTANT IN
INTERFERING WITH CONTRACTS
The satisfaction whether a bidder satisfies the tender
condition is primarily upon the authority inviting the
bids. Such authority is aware of expectations from the
tenderers while evaluating the consequences of non-
performance. In the tender in question, there were 15
bidders. Bids of 13 tenderers were found to be
unresponsive i.e., not satisfying the tender conditions.
The writ petitioner was one of them. It is not the case
of the writ petitioner that action of the Technical
Evaluation Committee was actuated by extraneous
considerations or was mala fide. Therefore, on the
same set of facts, different conclusions can be arrived
at in a bona fide manner by the Technical Evaluation
Committee. Since the view of the Technical Evaluation
Committee was not to the liking of the writ petitioner,
such decision does not warrant for interference in a
grant of contract to a successful bidder. Since the
construction of road is an infrastructure project and
keeping in view the intent of the legislature that
infrastructure projects should not be stayed, the High
Court would have been well advised to hold its hand
to stay the construction of the infrastructure project.
Such provision should be kept in view even by the
Writ Court while exercising its jurisdiction underArticle
500 I October 2022
226 of the Constitution of India. Writ Court should
refrain itself from imposing its decision over the
decision of the employer as to whether or not to accept
the bid of a tenderer. The Court does not have the
expertise to examine the terms and conditions of the
present day economic activities of the State and this
limitation should be kept in view. Courts should be
even more reluctant in interfering with contracts
involving technical issues as there is a requirement of
the necessary expertise to adjudicate upon such
issues.
Reference: Supreme Court. M/s N.G. Projects
Ltd. Vs. Vinod Kumar Jain & Ors., Civil Appeal
No. 1846 of 2022.
GRANDSONS ENTITLED TO GRANT
OF PROBATE
Original testators executed Will bequeathing their
property in favour of their sons excluding daughter
giving specific reasons for such exclusion. Will of the
father contains recitals to the effect that the daughter’s
daughter was given in marriage to the second son and
that his wife had left behind a Will dated 30.01.1995.
Once it is found that father not only attested the
mother’s Will and in his own Will which is a registered
Will, the father had made a mention about the mother’s
Will, all the suspicious circumstances sought to be
projected would automatically fall to the ground.
When it was not even the case of the respondents
that the testators were not in a sound and disposing
state of mind, the High Court found fault with the
appellants for not disclosing the nature of the ailments
suffered by them. The exclusion of one of the natural
heirs from the bequest, cannot by itself be a ground
to hold that there are suspicious circumstances. The
reasons given in Will of mother are more than
convincing to show that the exclusion of the daughter
has happened in a very natural way. If said Will had
been fabricated on blank papers containing the
signatures of the mother, there would have been no

occasion for the father to make a mention in his own
Will about the execution of the Will by the mother. The
father was alive till 08.08.2000. Therefore, there was no
necessity for the appellants to seek probate of the said
Will. After the death of father on 08.08.2000, the
appellants obviously had no support, due to the fact
that their father had pre deceased his father . The
occasion for the appellants to seek probate of the Will
arose only when the respondents filed the suit for
partition. Therefore, there was actually no delay on the
part of the appellants in seeking probate. Under both
the Wills, the properties have been equally distributed
between the two sons. The first son is now no more.
Admittedly daughter’s daughter has been given in
marriage to second son of testator. Therefore, if the
bequest under the two Wills go, family of second son
may eventually receive 2/3rd share of the properties,
which is more beneficial for second son than getting
half share under the Wills. Unfortunately, the High
Court completely overlooked this aspect and started
analyzing the Wills with suspicion. Therefore, the
Judgment of the High Court, unsustainable. Grandsons
entitled to grant of probate.
Reference: Supreme Court. Swarnalatha &
Ors. Vs. Kalavathy & Ors., Civil Appeal No.
1565 of 2022.
INTERPRETATION WHICH REDUCES
ONE OF THE PROVISIONS AS A
“DEAD LETTER” BE AVOIDED
Statute must be read as a whole. This rule of statutory
construction is so firmly established that it is variously
styled as “elementary rule”. It has been held that for
finding out the true meaning of one part of a statute,
a reference will have to be made to another part of the
statute and that will best express meaning of the
makers. It is the duty of the Court to avoid a head on
clash between two sections of the Act and to construe
the provisions which appear to be in conflict with each
other in such a manner so as to harmonise them.
LAW FOR YOU
Provisions of one section of a statute cannot be used
to defeat the other provisions unless the court finds
the reconciliation between them impossible. When two
conflicting provisions in an Act cannot be reconciled
with each other, they should be so interpreted that, if
possible, effect should be given to both. It has further
been held that an interpretation, which reduces one
of the provisions as a “dead letter” or “useless
lumber”, should be avoided. If the court has a choice
between two interpretations, the narrower of which
would fail to achieve the manifest purpose of the
legislation, such an interpretation will have to be
avoided.
Reference: Supreme Court. Kalyan
Dombivali Municipal Corporation Vs. Sanjay
Gajanan Gharat & Anr., Civil Appeal No. 2643
of 2022.
BENEFIT OF INTERIM ORDER WOULD
AUTOMATICALLY GO, WHEN PARTY
WHO SECURED IT, FAILS
The definition of the expression, “wages” is in 3 parts,
the first part indicating the meaning of the expression,
the second part indicating what is included therein
and the third part indicating what is not included
therein. In the first part of the definition, the emphasis
is on what is earned by the employee “in accordance
with the terms and conditions of employment”.
Irrespective of whether what was earned has been
paid or remained payable, the same is included in the
definition, provided it is in accordance with the terms
and conditions of his employment. The employees
initiated the first round of litigation before various
High Courts, for the grant of the benefit of revision
of pay scales, way back in the year 1996, on the
ground that the employees of other PSUs have been
granted revision on par with the Government servants.
What was claimed in the first round of litigation was
not what was payable in accordance with the terms
and conditions of employment. The Court was clear
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LAW FOR YOU
in its interim order dated 18.08.2000 as to how the ad
hoc payment ordered thereunder should be treated.
Even in the final order, Supreme Court made it clear
that what was paid was only ad hoc. It is a
fundamental principle of law that a party who is in
enjoyment of an interim order, is bound to lose the
benefit of such interim order when the ultimate
outcome of the case goes against him. Merely because
of the fortuitous circumstance of the Voluntary
Separation Scheme coming into effect before the
transferred cases were finally dismissed by Supreme
Court, creating an illusion as though the last drawn
pay included this ad hoc payment, it is not possible
to go against the fundamental rule that the benefits
of an interim order would automatically go when the
party who secured it, failed in the final stage. Orders
of High Court, the Controlling Authority and the
Appellate Authority under the Act, holding that the
ad hoc payment made pursuant to interim orders by
Supreme Court will form part of the wages, are set
aside.
Reference: Supreme Court. Chairman-cum-
Managing Director Fertilizer Corporation of
India Ltd. & Anr. Vs. Rajesh Chandra
Shrivastava & Ors., Civil Appeal No. 2260 of
2022.
REGISTRAR, NOT AT PAR WITH THE
LECTURER
Petitioner was working on post of Assistant Registrar
worked as Lecturer for limited period. He was claiming
parity with counterparts in Central Universities. His
Plea that having revised pay scale for Lecturers,
nothing prevented State from undertaking said
exercise for Registrars as well. However State is not
bound by any direction issued by Central Government
which would be mandatory to Central Universities and
Central Government Colleges receiving funds. Any
such decision would obviously be directory to State
Government Colleges and Universities, being in nature
502 I October 2022
of mere recommendation. The High Court of
Uttarakhand completely misconstrued the facts. The
State nowhere has made a decision to accept and
adopt the circular of the Central Government pertaining
to the Registrars working in the Universities coming
under its purview. In the absence of any legal right
with the corresponding duty, such a relief can never
be asked for, particularly when there are clear and
specific rules provided for the pay scale of Registrars
by the State itself. The decision of the State qua the
Lecturers who form a distinct group as against the
Respondent who holds a higher position in the
administration has been lost sight of. Merely because
Respondent was made to fill the gap by temporarily
taking up the job of a Lecturer, he would never become
one and so also a Lecturer, who might undertake the
job of a Registrar. This is nothing but an administrative
convenience borne out of a contingency. When the
classification is distinct and clear having adequate
rationale with due relation to the objective, there is no
reason to hold otherwise by treating a Registrar at par
with the Lecturers. One is meant for administration and
the other teaching. The High Court has also not
considered the financial implications as any decision
would not rest with Respondent alone, but the entirety
of the administrative staff.
Reference: Supreme Court. State of
Uttarakhand Vs. Sudhir Budakoti & Ors., Civil
Appeal No. 2661 of 2015.
GRANT OF REMISSION, EXCLUSIVE
PREROGATIVE OF THE EXECUTIVE
To suspend or remit the sentence, a discretion vests
with the government, the executive power cannot be
exercised arbitrarily. The prerogative of the executive
is subject to the rule of law and fairness in state action
embodied in Article 14 of the Constitution. While the
court can review the decision of the government to
determine whether it was arbitrary, it cannot usurp the
power of the government and grant remission itself.

Where the exercise of power by the executive is found
to be arbitrary, the authorities may be directed to
consider the case of the convict afresh. Court has the
power to review the decision of the government
regarding the acceptance or rejection of an application
for remission under Section 432 of the CrPC to
determine whether the decision is arbitrary in nature.
While the grant of remission is the exclusive
prerogative of the executive and the court cannot
supplant its view, the Court can direct the authorities
to re-consider the representation of the convict.
Reference: Supreme Court. Ram Chander Vs.
State of Chhattisgarh & Anr., Writ Petition
(Crl.) No. 49 of 2022.
NO NEED FOR HOLDING A ROVING
ENQUIRY WHILE DECIDING REVISION
Proviso to Section 25B(8) of Delhi Rent Control Act
gives the High Court exclusive power of revision
against an order of the Rent Controller, being in the
nature of superintendence over an inferior court on
the decision making process, inclusive of procedural
compliance. High Court is not expected to substitute
and supplant its views with that of the trial Court by
exercising the appellate jurisdiction. Its role is to satisfy
itself on the process adopted. The scope of
interference by the High Court is very restrictive and
except in cases where there is an error apparent on
the face of the record, which would only mean that in
the absence of any adjudication per se, the High Court
should not venture to disturb such a decision. There
is no need for holding a roving inquiry in such matters
which would otherwise amount to converting the
power of superintendence into that of a regular first
appeal, an act, totally forbidden by the legislature.
Rent Controller passed a detailed speaking order . The
High Court, while ignoring the aforesaid conduct of
the respondent, as noted by the Rent Controller ,
proceeded to allow the revision by treating it like an
appeal. The contention regarding alternative
LAW FOR YOU
accommodation can at best be only an incidental one.
Such a requirement has not been found to be incorrect
by the High Court, though it is not even open to it to
do so, in view of the limited jurisdiction which it was
supposed to exercise. Therefore, the very basis upon
which the revision was allowed is obviously wrong
being contrary to the very provision contained in
Section 14(1)(e) and Section 25B(8).
Reference: Supreme Court. Abid-ul-Islam
Vs. Inder Sain Dua, Civil Appeal No. 9444 of
2016.
RIGHTS HAVE TO BE DETERMINED
ON THE DAY WHEN LIS COMMENCES
Under the Rajasthan Rent Control Act, Section 18 does
not talk about the validity of any decree of the civil
court but only restricts the jurisdiction of the civil
court from the date the Act became applicable. The
Act has come into force in respect of the premises in
question on dated 11.05.2015 i.e., after the civil suit
was filed, therefore, the decree could validly be passed
and executed. After the applicability of the Act to the
area in question, the landlord and tenant dispute can
be raised only before the Rent Tribunal but not before
the civil court. However, a suit filed before the civil
court prior to the applicability of the Act has to be
decided by the civil court. A decree passed by the civil
court is valid and executable which is not interdicted
by the applicability of the Act to the area in question.
The Act is applicable to the area in question from the
date the notification came into force and it does not
bar the decree of the civil court or the pendency of
such civil suit. Further, the rights of the parties have
to be determined on the date when lis commences i.e.,
on the date of filing of the suit.
Reference: Supreme Court. Shankarlal Nadani
Vs. Sohanlal Jain, Civil Appeal No. 2816 of
2022.
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LAW FOR YOU
NO SUBSTANTIAL BASIS FOR
DIFFERENTIATING THE
VANNIAKULA KSHATRIYAS AND
GRANTING THEM RESERVATION
The object of T.N. Special Reservation of Seats in
Educational Institutions including Private Educational
Institutions and of Appointments or Posts in the
Services under the State within the Reservation for the
Most Backward Classes and Denotified Communities
Act, 2021 Act is to achieve equitable distribution of
the benefit of 20 per cent reservation provided to
‘Most Backward Classes’ (MBCs) and ‘Denotified
Communities’ (DNCs). At the cost of repetition, at the
time of enactment of the 2021 Act, 116 castes were to
be found in the cumulative lists of MBCs and DNCs.
Choosing a particular caste and providing a special
reservation of 10.5 per cent out of the 20 per cent to
such caste is discriminatory, in the absence of any
sound differentiation from communities who are
similarly situated and were, therefore, grouped
together for the purposes of receiving the benefits of
20 per cent reservation. While the State Government
has the competence to classify the Vanniakula
Kshatriyas or any other community or group of
communities within backward classes as a particular
class for the grant of special measures, there should
be a reasonable basis for categorising such
communities into a different section from the rest of
the communities within the MBCs and DNCs, on
grounds which cannot be superficial or illusory. The
justification on behalf of the State is that sufficient
material was gathered by the Tamil Nadu Backward
Classes Commission to show that there was
inadequate representation, disproportionate to the
population of the Vanniakula Kshatriyas, thereby
culminating in the 2021 Act, which aimed to achieve
equitable distribution of reservation amongst MBCs
and DNCs. The letter from the Chairman, Backward
Classes Commission is on the basis of antiquated data,
without any assessment of the relative backwardness
504 I October 2022
and representation of the Vanniakula Kshatriyas and
their ability to compete with the remaining 115
communities within the MBCs and DNCs.Additionally,
recommendations therein are solely based on
population. To differentiate a particular class/category
from others, there should be a substantial distinction
which clearly demarcates that class/category. In the
instant case. There is no justification for how the
Vanniakula Kshatriyas can be treated as a different
class and meted out preferential treatment, being one
amongst the 116 communities, who have all been
considered on the same footing till the enactment of
the 2021 Act and were, therefore, eligible to claim the
benefit of undivided 20 per cent reservation.
Accordingly, classification sought to be made under
the 2021 Act is unreasonable and, therefore, the 2021
Act is violative of Articles 14, 15 and 16, as there is
no substantial basis for dif ferentiating the Vanniakula
Kshatriyas and granting them separate reservation.
Reference: Supreme Court. Pattali Makkal
Katchi Vs. A. Mayilerumperumal & Ors., Civil
Appeal No. 2600 of 2022.
STATES ARE EMPOWERED TO MAKE
RESERVATION FOR BACKWARD
CLASSES UNDER ARTICLES 15(4) &
16(4) OF CONSTITUTION
The T.N. Special Reservation of Seats in Educational
Institutions including Private Educational Institutions
and of Appointments or Posts in the Services under
the State within the Reservation for the Most
Backward Classes and Denotified Communities Act,
2021 deals with matters which are incidental or ancillary
to those contained in the 1994 Act and the State is
competent to legislate on such matters. It is for the
State to decide whether a legislation, which is not
repugnant to any law made by the Parliament on the
same subject matter, should receive the assent of the
President or not. If the assent of the President is not
sought, the consequence is that the statute made by

the State is susceptible to challenge as being violative
of Article 14 or Article 19. However, it cannot be said
that the State cannot legislate on subject matters,
ancillary to that of an earlier statute which has
received the assent of the President, or that it is
mandatory for the State Government to seek the assent
of the President for a legislation which the State is
otherwise competent to enact. States are empowered
to make reservation for backward classes under
Articles 15(4) and 16(4). Without any express bar
under Article 31-C, the State’s competence to enact the
2021 Act with the Governor’s assent cannot be faulted
with nor can the State be compelled by the courts to
reserve the 2021 Act for assent of the President.
Reference: Supreme Court. Pattali Makkal
Katchi Vs. A. Mayilerumperumal & Ors., Civil
Appeal No. 2600 of 2022.
THE VICTIM NEED NOT BE THE
COMPLAINANT OR INFORMANT OFA
FELONY
The ‘victim’ - the de facto sufferer of a crime had no
participation in the adjudicatory process and was
made to sit outside the Court as a mute spectator .
However, with the recognition that the ethos of
criminal justice dispensation to prevent and punish
‘crime’ had surreptitiously turned its back on the
‘victim’, the jurisprudence with respect to the rights
of victims to be heard and to participate in criminal
proceedings began to positively evolve. On the
domestic front, recent amendments to the Cr.P.C. have
recognised a victim’s rights in the Indian criminal
justice system. It was recommended that the victim be
armed with a right to be represented by an advocate
of his/her choice, and if he/she is not in a position to
afford the same, to provide an advocate at the State’s
expense. The victim’s right to participate in criminal
trial and his/her right to know the status of
investigation, and take necessary steps, or to be
heard at every crucial stage of the criminal
LAW FOR YOU
proceedings, including at the time of grant or
cancellation of bail, were also duly recognised by the
Committee. The right of a victim under the amended
Cr.P.C. are substantive, enforceable and are another
facet of human rights. The victim’s right, therefore,
cannot be termed or construed restrictively like a
brutum fulmen. These rights are totally independent,
incomparable and are not accessory or auxiliary to
those of the State under the Cr.P.C. The presence of
‘State’ in the proceedings, therefore, does not
tantamount to according a hearing to a ‘victim’ of the
crime. A ‘victim’ within the meaning of Cr.P.C. cannot
be asked to await the commencement of trial for
asserting his/her right to participate in the
proceedings. He/She has a legally vested right to be
heard at every step post the occurrence of an offence.
Such a ‘victim’ has unbridled participatory rights from
the stage of investigation till the culmination of the
proceedings in an appeal or revision. It is not always
necessary that the complainant/informant is also a
‘victim’, for even a stranger to the act of crime can be
an ‘informant”, and similarly, a ‘victim’ need not be the
complainant or informant of a felony .
Reference: Supreme Court. Jagjeet Singh &
Ors. Vs. Ashish Mishra alias Monu & Anr.,
Criminal Appeal No. 632 of 2022.
QUANTUM OF PUNISHMENT
The employee who at the relevant time was serving
as Postal Assistant was subjected to a departmental
enquiry for defrauding a sum of Rs.16,59,065/-. That
during the period from 2004 to 2007, he committed
fraud by way of fraudulent withdrawal in 85 RD
accounts and by way of non-credit of deposits in 71
RD accounts and thus defrauded a sum of Rs.
16,59,065/-. Only after the fraud came to light, the
employee deposited the entire defrauded amount with
interest. However, as the misconduct was very
serious, the department initiated departmental enquiry
for having failed to maintain absolute integrity and
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LAW FOR YOU
devotion to duty as required of him by Rule 3(1)(i) and
3(1)(ii) of Central Civil Services Conduct Rules, 1964.
The employee admitted the charge. The Inquiry Officer
submitted the report and held all the charges proved.
That thereafter, the Disciplinary Authority concurred
with the findings recorded by the Inquiry Officer and
considering the seriousness of the misconduct
committed, passed an order of removal. The Tribunal
interfered with the quantum of punishment of removal
imposed by the Disciplinary Authority and substituted
the same to that of compulsory retirement, mainly on
the ground and reasoning that the delinquent officer
had completed 39 years of unblemished service and
the entire amount of fraud with interest has been paid
and recovered from him and thus there is no financial
loss caused to the department. The order passed by
the Tribunal has been confirmed by the High Court is
challenged by Department. Neither the Tribunal nor
the High Court have found any irregularity in
conducting the departmental enquiry. No procedural
lapses have been found. Once a conscious decision
was taken by the Disciplinary Authority to remove an
employee on the proved misconduct of a very serious
nature of defrauding public money , neither the
Tribunal nor the High Court should have interfered
with the order of punishment imposed by the
Disciplinary Authority, which was after considering
the gravity and seriousness of the misconduct. Merely
because the respondent-employee had worked for 39
years and in those years, there was no punishment
imposed and/or that he voluntarily deposited the
defrauded amount along with penal interest and
therefore there was no loss to the Government/
Department cannot be a ground to interfere with the
order of punishment imposed by the Disciplinary
Authority and substitute the same from removal to
that of compulsory retirement. Neither the Tribunal nor
the High Court have, in fact, considered the nature
and gravity of the misconduct committed by
employee. Therefore, both, the Tribunal as well as the
High Court had exceeded in their jurisdiction in
506 I October 2022
interfering with the quantum of punishment imposed
by the Disciplinary Authority.
Reference: Supreme Court. Union of India &
Ors. Vs. M. Duraisamy, Civil Appeal No. 2665
of 2022.
OPINION OF PRESIDING JUDGE
The opinion of the presiding judge shines a light on
the nature of the crime that has been committed, the
record of the convict, their background and other
relevant factors. Crucially, the Court observed that the
opinion of the presiding judge would enable the
government to take the ‘right’ decision as to whether
or not the sentence should be remitted. Hence, it
cannot be said that the opinion of the presiding judge
is only a relevant factor, which does not have any
determinative effect on the application for remission.
The purpose of the procedural safeguard under
Section 432(2) of the CrPC would stand defeated if the
opinion of the presiding judge becomes just another
factor that may be taken into consideration by the
government while deciding the application for
remission. It is possible then that the procedure under
Section 432(2) would become a mere formality .
However, it cannot be said that the appropriate
government should mechanically follow the opinion
of the presiding judge. If the opinion of the presiding
judge does not comply with the requirements of
Section 432(2) or if the judge does not consider the
relevant factors for grant of remission, the government
may request the presiding judge to consider the matter
afresh.
Reference: Supreme Court. Ram Chander Vs.
State of Chhattisgarh & Anr., Writ Petition
(Crl.) No. 49 of 2022.
ooooooo

A CLOSE RELATIVE CANNOT AUTOMATICALLY BE
CHARACTERIZED AS AN INTERESTED WITNESS
A Bench of Chief Justice of India N.V. Ramana and
Justices Krishna Murari and Hima Kohli of the
Supreme Court held it is an established principle of
law that a close relative cannot automatically be
characterized as an “interested” witness. However,
statement of a related witness needs to be scrutinized
more carefully.
The Supreme Court held there were contradictions in
the evidence. She had also failed to provide any
discernible features of the accused-appellant. The
incident had occurred at around 10:30 PM and thus it
was not possible for her to recognize Jai Prakash
Tiwari (the appellant) in a fleeting moment at night
while he was speeding away on his bike, more so when
she had specifically stated that she was not
acquainted with the accused persons. No effort was
made to conduct an identification test. Hence her
testimony was unreliable.
The Court held according to Sub Inspector (PW9), the
alleged motorcycle and country made pistol were
seized from complainant’s house on the basis of
accused-appellant’s disclosure statement. But
witnesses to the seizure gave varying statements.
According to PW5, there was no recovery of bike. He
was declared hostile. PW8 stated that only pistol was
seized but he contradicted himself by stating that a
black coloured splendor motorcycle was seized. This
contradiction was not minor. There was no recovery
of any pellet, empty cartridge or any remains of the
gunpowder from the spot. In absence of a ballistic
report, no clear connection could be established
between the seized weapon and the alleged incident.
Similarly, there was nothing to link the seized vehicle
with the alleged incident. The complainant himself
gave a vague description of the motorcycle. Neither
license number nor colour nor any other
CRIM INAL LAW S
distinguishing feature of the motorcycle was indicated.
Hence, no reliance could be placed on the recoveries.
The Bench held object of Section 313 is to establish a
direct dialogue between the Court and the accused. It
confers a valuable right upon an accused to establish
his innocence by explaining the adverse
circumstances put up against him and can well be
considered beyond a statutory right, as a
constitutional right to a fair trial under Article 21.
The Bench said all adverse evidences should be put
to the accused in the form of questions so as to give
an opportunity to him to articulate his defence and
give his explanation. If all circumstances are bundled
together and a single opportunity is provided, accused
may not be able to put forth a rational and intelligible
explanation. Non-fulfilment of the true spirit of Section
313 may cause grave prejudice to the accused and
deprive the Court of the benefit of all necessary facts
and circumstances. However, such an omission does
not ipso factor vitiate the trial, unless accused proves
that grave prejudice have been caused to him.
The Bench clarified the burden of proving the guilt of
the accused beyond reasonable doubt is on the
prosecution. An accused is required to prove his
defence by preponderance of probabilities and not
beyond reasonable doubt. Once a plausible defence
is put forth at the stage of Section 313 Cr .P.C.
examination, then it is for the prosecution to negate
such defence.
The Supreme Court advised, it is the solemn duty of
the courts below to consider the defence of the
accused. The same must be considered with caution
and must be scrutinised by application of mind. In the
present case, courts below have failed to undertake
this solemn duty and have dealt with the evidence of
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CRIM INAL LAW S
the accused in a casual manner.
The appellant was sentenced to undergo three years
of rigorous imprisonment with fine of Rs.500/- under
Section 307 IPC. He was further sentenced to undergo
three years of rigorous imprisonment with fine of
Rs.1,000/- under Section 27 of the Arms Act and one
year of rigorous imprisonment with fine of Rs.500/-
under Section 25 of the Arms Act. Appellant has
undergone approximately 1 year, 7 months of his
sentence and was released on bail by Supreme Court
during the pendency of the present appeal.
The factual matrix as per the prosecution is that, on
14.02.2003 at about 10:30 p.m., the appellant and co -
accused went to the complainant’s house and called
him outside. When the complainant came out, the
appellant fired at him with a country-made pistol. The
complainant (PW2) is stated to have run into the house
and escaped injury while the appellant and co-accused
fled from the spot on their motorcycle. The
complainant’s mother (PW3) was allegedly present in
the house at the time of the incident and the
complainant’s neighbours (PW1, PW10, PW11) arrived
upon hearing the sound of gunfire. The firearm used
in the alleged incident is stated to have been
recovered from the appellant, along with an empty
cartridge.
The prosecution charged the appellant and co -
accused under Section 307/34 IPC and Sections 25(1B)
(a) and Section 27(1) of the Arms Act. After perusal
of evidence on record and examination of witnesses,
the trial Court convicted and sentenced the appellant
as specified above while acquitting the co-accused,
as the prosecution had failed to prove the charges
against him. By way of impugned order dated
26.05.2017, the Madhya Pradesh High Court confirmed
the appellant’s conviction and sentence. Aggrieved,
the appellant approached Supreme Court in appeal by
way of special leave.
The Supreme Court set aside the conviction and
sentence passed against the appellant.
508 I October 2022
OPERATIVE PART
“It is an established principle of criminal law that the
burden of proving the guilt of the accused beyond
reasonable doubt is upon the prosecution. Where an
accused sets up a defence or offers an explanation, it
is well-settled that he is not required to prove his
defence beyond a reasonable doubt but only by
preponderance of probabilities. [See M. Abbas v.
State of Kerala, (2001) 10 SCC 103]. Further, it has
been held by this Court in Parminder Kaur v. State of
Punjab, (2020) 8 SCC 811 that “once a plausible
version has been put forth in defence at the Section
313 CrPC examination stage, then it is for the
prosecution to negate such defence plea”.
Moreover, it is the solemn duty of the courts below to
consider the defence of the accused. The same must
be considered with caution and must be scrutinised
by application of mind by the judge. The Court may
accept or reject the same, however it cannot be done
cursorily. The reasoning and the application of mind
must be r eflected in writing. However, from the
observations extracted above, it is clear that the
courts below have failed to undertake this solemn duty.
Rather, the evidence of the accused has been dealt by
the Court in a casual manner.
In the above circumstances, when there is absence of
independent evidence corroborating the statements
made by complainant, serious doubts regarding the
recovery of the alleged motorcycle and the country
made pistol, no connection proved between the
alleged recovered items and the alleged incident, and
the plausible version put forward by the accused-
appellant in his Section 313 statement has not been
satisfactorily responded to by the prosecution, the case
against the accused-appellant cannot be sustained.”
Reference: Supreme Court. Jai Prakash Tiwari
Vs. State of Madhya Pradesh, Criminal
Appeal No. 704 of 2018 dt. 04.08.2022.
—————

CHILD WELFARE HAS TO BE GIVEN
PARAMOUNT CONSIDERATION
A Bench of Justices A.M. Khanwilkar and C.T.
Ravikumar of the Supreme Court held child welfare has
to be given paramount consideration in child custody
matters. The question what is wish/desire can be
ascertained through interaction, but then, the question
as to ‘what would be the best interest of the child’ is
a matter to be decided by the court taking into all
account all relevant circumstances. In this case, High
Court interacted with the child to know about his
desire and comfort with respect to his schooling and
stay at Bangalore and were satisfied that the child was
comfortable. However, High Court failed to note that
the 11 year old child was a naturalised US citizen with
an American passport. His parents were holders of
Permanent US Resident Cards. He was born in USA
in 2011 and till the year 2020 he was living and
studying there. He was accustomed to the lifestyle,
language, custom, rules and regulations of USA. Thus,
his welfare demanded his return to USA as he had
better avenues and prospects there. Merely because
he was brought to India by his mother in 2020 and he
was not feeling comfortable with his schooling and
stay at Bengaluru could not have been taken as factors
for considering his welfare. Further, on two occasions
American Courts had ordered his return to USA. It was
not a case where Courts in India could refuse to
acknowledge such orders of the US Court.
The Bench clarified order passed by the US Court was
not strictly for the return of respondent No. 3-mother
but for facilitating the return of the child, who was a
naturalised citizen of America holding an American
passport.
The Supreme Court held at the second occasion i.e.
on 09.03.2021, US Court had also passed an order
directing respondent No. 3 to return the child to the
US. Said order was not vacated. Due to non
CHILD CUSTODY
compliance of this order, action for contempt was also
initiated and spousal support order was suspended.
When the US Court passed such orders and not orders
from the custody of the child, it ought not to have
been taken as a permission for respondent No. 3 to
keep the custody of the child.
According to Rohith Thammana Gowda (the
appellant), on 03.03.2020, Respondent No.3 came to
Bengaluru in India with the child, without his consent.
At that time, the appellant was already in India to
attend his ailing mother viz., from 27.02.2020 till
09.03.2020. Upon reaching USA he realized that the
child was missing from the matrimonial home. He made
initial enquiries at the school, in vain, and thereupon
lodged a complaint with the Of fice of Children’s
Issues, USA, alleging that the child was kidnapped by
respondent No.3-wife. Later, in the evening he could
contact his father -in-law in India and on being
informed of the availability of his wife and minor child
at home in Bengaluru he withdrew the said complaint
on 11.03.2020. Subsequently, he filed the Habeas
Corpus writ petition before High Court of Karnataka
at Bengaluru in September, 2020. He has also filed a
Custody Petition in the Superior Court of Washington,
County of King, on 22.1.2020 and obtained an ex-parte
order dated 26.10.2020. The respondent was directed
to return the child to the United States. On 29.10.2020
respondent No.3 participated in the proceedings before
the US Court and moved a motion for vacating the ex-
parte order. Consequently, the ex-parte order to return
the child was vacated. Later, respondent No.3 filed a
petition challenging the jurisdiction of the US Court
and as per order dated 15.01.2020 the US Court upheld
its jurisdiction over the minor child. Still later, she
herself invoked the jurisdiction of the Superior Court
of the State of Washington In and For King County,
www.lawteller.com I October 2022 I 509
CHILD CUSTODY
seeking temporary orders of child support and spousal
support as also for appointment of a parenting
evaluator. The US Court passed an order on 09.03.2021
granting her spousal support of $5000 USD per month
subject to conditions. The US Court also passed an
order directing her to return the child to US. Earlier,
respondent No.3 filed a custody petition bearing G &
W No.246/2020 before the Family Court Bengaluru. It
was dismissed as being not maintainable for want of
jurisdiction under Section 9 of the Guardians and
Wards Act, 1890. (Now, the matter is pending before
the High Court of Karnataka in Civil Revision Petition
No. 318/2021). According to the appellant, in the
circumstances only the US Courts got jurisdiction to
decide the question of custody of the minor child. The
contention of the appellant is that the High Court had
ignored the orders of the US Court and also failed to
take a proper decision on the question as to what
would be in the best interest of the child. The
appellant has taken up contentions and also produced
documents in a bid to establish the affinity and
affection of the child towards him, in this proceeding.
Obviously, his attempt is to establish that for the
interest of the child, the child should return to US.
Respondent No.3 resisted the contentions of the
appellant. Before the High Court she contended that
though the child was brought to India without the
appellant’s consent subsequently she was permitted
to have the custody of the child by the appellant
himself as also by the US Courts. In support of the
contention that the appellant had given consent for
keeping the child in her custody she relied on an email
sent by the appellant herein on 15.03.2020. The fact is
that the child is now, admitted in a school in Bengaluru
and he is now pursuing his studies there. Obviously,
respondent No.3 had raised the contentions before the
High Court to establish that the child was not in illegal
or unlawful custody and therefore, the appellant is not
entitled to the prayer sought for and on the contrary,
she is entitled to continue with the custody of the
510 I October 2022
minor child.
The Supreme Court allowed the appeal and the
impugned judgment passed by the High Court in Writ
Petition (Habeas Corpus) No. 76/2020 was set aside.
The Bench issued following further directions:-
(i) Respondent No.3 shall ensure that the
child returns back to United States of America
forthwith. In that regard respondent No.3 as
well as the appellant, whoever is in
possession of the American passport of the
child in question, shall do the needful in
accordance with the law to enable the child’s
return to his native country viz., USA;
(ii) Respondent No.3 and the appellant shall
take necessary action to get the child relieved
from the present school and also to get him
admitted in any school in USA where the
appellant is presently residing, without
causing much interruption to his studies;
(iii) Respondent No.3, if she wants to
accompany the child and stay back in USA
will be at liberty to do so. If she requires
arrangement of accommodation for herself
and her parents in USA she may intimate her
desire in that regard to the appellant. Upon
such intimation in writing the appellant shall
forthwith do the needful to honour the
assurance given to Supreme Court, as noted
above, so as to enable respondent No.3 and
her parents, as the case may be, to
accompany the child and also to stay back
in USA provided they fulfil the necessary
legal formalities for their travel and stay in
USA;
(iv) All necessary legal formalities to enable
the child’s smooth return to USA shall be
taken by respondent No.3 and the appellant
expeditiously at any rate within a period of
two months so that there will be minimum
 CHILD CUSTODY
interruption in pursuing the studies of the circumstances and the environment in which the child
child. had born and was brought up for about a decade
The Bench made it clear that if respondent No. 3 coupled with the fact that he is a naturalised
requires custody or visitation rights of the child, she American citizen, his return to America would be in
may do so by invoking the jurisdiction of appropriate his best interest. In this case it is also to be noted that
forum in USA. The appeal was disposed of. on two occasions American courts ordered to return
the child to USA. True that the first order to that effect
OPERATIVE PART
was vacated at the instance of respondent No.3.
“The child in question is a boy, now around 11 years
However, taking into account all aspects, we are of
and a naturalised US citizen with an American
the view that it is not a fit case where courts in India
passport and his parents viz., the appellant and
should refuse to acknowledge the orders of the US
respondent No.3 are holders of Permanent US
Courts directing return of the minor child to the
Resident Cards. These aspects were not given due
appellant keeping in view the best interests of the
attention. So also, the fact that child in question was
child. In our view, a consideration on the point of
born in USA on 03.02.2011 and till the year 2020 he
view of the welfare of the child would only support
was living and studying there, was also not given due
the order for the return of the child to his native
weight while considering question of welfare of the
country viz., USA. For, the child is a naturalised
child. Merely because he was brought to India by the
American citizen with American passport. He has been
mother on 03.03.2020 and got him admitted in a
brought up in the social and culture value milieu of
school and that he is now feeling comfortable with
USA and, therefore, accustomed to the lifestyle,
schooling and stay in Bengaluru could not have been
language, custom, rules and regulations of his native
taken as factors for considering the welfare of the boy
country viz., USA. Further, he will have better avenues
aged 11 years born and lived nearly for a decade in
and prospects if he returns to USA, being a
USA. The very fact that he is a naturalised citizen of
naturalised American citizen.”
US with American passport and on that account he
Reference: Supreme Court . Rohith
might, in all probability, have good avenues and
Thammana Gowda Vs. State of Karnataka &
prospects in the country where he is a citizen. This
Ors., Civil Appeal Nos. 4987 of 2022 dt.
crucial aspect has not been appreciated at all. In our
29.07.2022.
view, taking into account the entire facts and
—————

IN B R IE F
Sale of software in CDs/DVDs is sale of goods. Once sale tax is paid on sale consideration, no service
tax can be levied on same transaction merely because updates are being provided to software. Commissioner
of Service Tax Delhi Vs. Quick Heal Technologies Ltd., Civil Appeal No. 5167 of 2022 (SC).
Application seeking summoning of nodal officers of cellular entities along with decoding register cannot
be dismissed merely on ground that it will lead to filling up loopholes of prosecution case. Varsha Garg Vs.
State of Madhya Pradesh & Ors., Criminal Appeal No. 1021 of 2022 (SC).
When assignment of tenancy rights by tenant was not ratified by the landlord, such assignment would
be prohibited and the assignee cannot obstruct execution of possession decree. Shabbir Mohammad Sayed
Vs. Noor Jehan Mushter Shaikh & Ors., Civil Appeal Nos. 5039-5040 of 2022 (SC).

www.lawteller.com I October 2022 I 511

CRIM INAL LAW S
SUMMONING AN ACCUSED PERSON CANNOT BE
RESORTED TO AS A MATTER OF COURSE
A Bench of Justices Indira Banerjee and J.K.
Maheshwari of the Supreme Court held summoning an
accused person cannot be resorted to as a matter of
course and the order must show application of mind.
As the accused-company had entered appearance
through an authorized officer, personal appearance of
the appellants could have been dispensed with.
The Supreme Court held three categories of persons
covered by the provisions of Section 141 of Negotiable
Instruments Act are 1) company who committed the
offence as alleged, 2) everyone who was in-charge of
or was responsible for the business of the company
and 3) any other person who was a Secretary or Officer
of the Company with whose connivance or neglect the
company had committed the offence.
The Court held when a complaint is filed against a
Director of the Company, who is not the signatory of
the dishonoured cheque, specific averments have to
be made in the pleadings to substantiate the contention
in the complaint, that such Director was in charge of
and responsible for conduct of the business of the
Company or the Company, unless such Director is the
designated Managing Director or Joint Managing
Director. Provisions of Section 138/141 create a
statutory presumption of dishonesty on the part of the
signatory of the cheque and also those persons in
charge of or responsible for the company or the
business of the company. A Managing Director or Joint
Managing Director is admittedly in charge of the
Company and responsible to the company for the
conduct of its business by virtue of the office he/she
holds. Hence, it is not necessary to make the aforesaid
averment in their case. However , merely being a
Director of the Company is not sufficient. A Director
who is not in charge or responsible for the conduct of
the business of the company at the relevant time, will
512 I October 2022
not be liable. Liability depends on the role one plays
in the affairs of the company and not on designation
or status alone.
The Court further held in the present case, only a bald
averment was made that appellants (accused Nos. 3,
4 and 5) were Directors of the accused Company and
responsible for the day-to-day affairs of the accused
Company. Unimpeachable material on record clearly
showed that the appellants were independent, non-
executive Directors of the Company. A non-Executive
Director is not involved in the day-to-day affairs of
the Company or in the running of its business.
Cheque was signed by accused No. 2. Appellants were
not even the signatories of the cheque. High Court
erred in adopting a hyper-technical approach in
rejecting their application under Section 482 Cr.P.C. on
a cursory reading of the formalistic pleadings in the
complaint, endorsing the contents of Section 141,
without any particulars.
M/s Panchami Stone Quarry (“PSQ”) (the respondent)
filed a petition of complaint, inter alia, against the
Appellants under Section 138/141 of the NI Act which
was registered as Case No. AC/121/2017.
In the petition of complaint, PSQ impleaded M/s MBL
Infrastructure Limited, a public limited company,
within the meaning of the Companies Act 2013 (“the
Accused Company”), as Accused No.1. One Mr.
Anjanee Kumar Lakhotia, Managing Director of the
Accused Company was impleaded as the Accused
No.2 and the Appellants were impleaded as Accused
Nos. 3, 4 and 5. The Appellant No.1 was the fourth
accused, Appellant No.2 was the fifth accused and
Appellant No.3 was the third accused.
In the said petition of complaint, PSQ alleged
“Accused Nos.2, 3, 4 and 5 are the Directors of

Accused No.1. i.e., M/s MBL Infrastructures Ltd.
respectively [and] are responsible to conduct the day-
to-day business affairs of the Accused No.1 .”
The Accused Company placed orders on PSQ on
different dates for purchase, inter alia, of Stone Dust
and S tone Aggregate. Purchase Orders dated
24.12.2015, 25.05.2016, 07.01.2016 and 09.04.2016 were
issued by the Accused Company, specifying the
materials required to be supplied, along with the rates
and quantity thereof. Pursuant to the aforesaid
purchase orders, PSQ supplied materials to the
Accused Company, and raised bills totalling
Rs.2,31,60,674/- (Rupees Two Crore, Thirty One Lakhs,
Sixty Thousand, Six Hundred and Seventy Four only)
on the Accused Company. In discharge of its liability
against the bills raised by PSQ on the Accused
Company, the Accused Company had issued an
Account Payee Cheque being No.001174 dated 15 th
March 2017 for a sum of Rs.1,71,08,512/- (Rupees One
Crore, Seventy One Lakhs, Eight Thousand, Five
Hundred and Twelve only) drawn on the Park Street
Branch of Kotak Mahindra Bank at Kolkata, in favour
of PSQ.
It is not in dispute that the Accused No.2-Anjanee
Kumar Lakhotia is the Managing Director and
authorised signatory of the Accused Company. The
said Accused No.2, Anjanee Kumar Lakhotia signed
the said cheque.
In the Petition of Complaint there is a bald averment
that the Appellants being the Accused Nos. 3, 4 and
5 were Directors of the Accused Company and
responsible for the day-to-day affairs of the Accused
Company. This averment is devoid of any particulars.
On 10th April 2017, PSQ deposited the cheque in its
bank for encashment, but the cheque was dishonoured,
with the endorsement ‘account closed’. On 3 rd May
2017, PSQ received intimation of dishonour of the
cheque from its banker. Thereafter, PSQ sent a demand
notice dated 29th May 2017 by speed post, calling
upon the Accused to make payment of the amount of
CRIM INAL LAW S
the dishonoured cheque, as per the provisions of
Section 138 of the NI Act.
Alleging that the Accused Company had not paid the
amount of the dishonoured cheque, that is,
Rs.1,71,08,512/- (Rupees One Crore, Seventy One
Lakhs, Eight Thousand, Five Hundred and Twelve
only) to PSQ within the time stipulated, PSQ filed the
aforesaid complaint under Section 138 read with
Section 141 of the NI Act, through its proprietor.
By an order dated 13th July 2017, the Additional Chief
Judicial Magistrate, 2nd Court, Suri, Birbhum registered
the petition as a complaint case, and after taking
cognizance, directed issuance of summons to the
Accused, with liberty to the Accused to adopt plea
bargaining. Case records were directed to be
transferred to the file of the Judicial Magistrate, 2 nd
Court, Suri, Birbhum. On the same day, the Judicial
Magistrate, 2 nd Court, Suri, Birbhum, West Bengal,
received the case records for trial and disposal.
On 26th March 2018, the Accused appeared through
Advocates and filed petitions under Section 205 of the
Cr.P.C. and under Section 305 of the Cr.P.C. and the
matter was adjourned till 16th May 2018 for appearance.
The case was heard on diverse dates and ultimately
adjourned till 9th July 2018 for Orders. By an Order
dated 9th July 2018, the Judicial Magistrate, 2 nd Court,
Suri, Birbhum rejected the Petitions under Sections 305
and 205 of the Cr.P.C., in the absence of the accused
persons. The Court directed the accused persons to
remain present in Court positively on next date, that
is 20th August 2018 to face appropriate proceedings.
The Appellants filed a Criminal Revisional Application
in the High Court under Section 482 of the Cr.P.C., inter
alia, praying that the proceedings in Case No.AC.121/
2017 under Section 138 read with Section 141 of the
NI Act pending in the Court of the Judicial Magistrate,
2nd Court, Suri be quashed and pending such order,
all proceedings in the said case be stayed. By the
judgment and order impugned in this Appeal, a Single
Bench of the High Court rejected the application under
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CRIM INAL LAW S
Section 482 of the Cr .P.C. Being aggrieved, the
Appellants have approached Supreme Court.
The Supreme Court accepted the appeal. The Criminal
Case No. AC/121/2017 pending under Section 138/141
was quashed insofar as these appellants were
concerned. It was made clear that the proceedings may
continue against the other accused in the criminal case,
including in particular the accused Company , its
Managing Director/Additional Managing Director and/
or the signatory of the cheque in question.
OPERATIVE PART
“As held by this Court in National Small Industries
Corporation Ltd. v. Harmeet Singh Paintal, (2010) 3
SCC 330 quoted with approval in the subsequent
decision of this Court in Pooja Ravinder Devidasani
v. State of Maharashtra and Anr., (2014) 16 SCC 1
the impleadment of all Directors of an Accused
Company on the basis of a statement that they are in
charge of and responsible for the conduct of the
business of the company, without anything more, does
not fulfil the requirements of Section 141 of the NI
Act.
In any event there could be no justification for not
dispensing with the personal appearance of the
Appellants, when the Company had entered
appearance through an authorized officer. As held by
this Court in Pepsi Foods Ltd. v. Special Judicial
Magistrate and Ors., (1998) 5 SCC 749 summoning
an accused person cannot be resorted to as a matter
of course and the order must show application of
mind.”
Reference: Supreme Court. Sunita Palita &
Ors. Vs. M/s Panchami Stone Quarry, Criminal
Appeal No. 1105 of 2022 dt. 01.08.2022.
—————

IN B R IE F
When retrenchment of drivers followed by an offer of re-employment on new terms and conditions
was not bona fide, once orders of retrenchment were set aside, workmen would naturally be entitled to continuity
of service with back wages. Armed Forces Ex Officers Multi Services Cooperative Society Ltd. Vs. Rashtriya
Mazdoor Sangh (INTUC), Civil Appeal No. 2393 of 2022 (SC).
Offence of Kidnapping and Murder of 13 years old boy for ransom – High Court failed to note that
crucial witnesses were yet to be examined – Cancellation of accused bail. Mamta & Anr. Vs. State (NCT of
Delhi), Criminal Appeal No. 878 of 2022 (SC).
Act of recycling plastic waste material or supply of plastic waste material for recycling cannot be said
to be act done with fire or any combustible matter under Section 285 of IPC. Gurukanwarpal Kirpal Singh Vs.
Surya Prakasam & Ors., Petition for Special Leave to Appeal (Crl.) No. 5485 of 2021 (SC).
Eye-witness account shows participation of accused persons in initial scuffle – Participation was full
and effective – conviction upheld. Rishiraj @ Tutul Mukherjee & Anr. Vs. State of Chhattisgarh, Criminal
Appeal No. 1301 of 2019 (SC).
Offence of infringement of copyright is cognizable offence under Section 63.M/s Knit Pro International
Vs. State of NCT of Delhi & Anr., Criminal Appeal No. 807 of 2022 (SC).
No good ground to quash proceedings, when clear case was made out for alleged offences. Satish
Kumar Jatav Vs. State of U.P. & Ors., Criminal Appeal No. 770 of 2022 (SC).

514 I October 2022


RE-EMPLOYMENT OF RETRENCHMENT
WORKMEN, DOES NOT ENTITLE THEM
TO CLAIM CONTINUITY OF SERVICE
A Bench of Justices B.R. Gavai and Pamidighantam Sri
Narasimha of the Supreme Court held as per decision
in Cement Corporation of India Ltd.’s case (2010) 15
SCC 754 and Maruti Udyog Ltd.’s case (2005) 2 SCC
638, re-employment of retrenched workmen does not
entitle them to claim continuity of service. However,
the principle laid down in these judgments will only
apply to cases where the retrenchment is bona fide.
In present case, retrenchment of all drivers followed
by an offer of re-employment on new terms and
conditions was not bona fide. Once the orders of
retrenchment were set aside, the workmen naturally
became entitled to continuity of service with order of
back wages.
The Bench held the act of terminating the services of
all drivers at the same time, coupled with the statement
that the entire business is closed down, was suf ficient
to convey to the workers and the Union that the
business had come to a standstill and that there was
no scope of continuing it any further. Both Tribunal
and High Court rightly held it to be virtually a case of
closure as there was lack of bonafide in the appellant’s
offers of re-employment on new terms and conditions,
without continuity of service. Tribunal concluded that
the retrenchment seemed to be imposed as retribution
against the workmen for going on a strike. It is for this
reason that the decision in Parry Company’s case,
(1969) 2 SCR 976 was not applicable.
The Supreme Court held whether a workman was
gainfully employed or not was a question of fact.
Tribunal, after considering the matter in detail and
appreciating the oral and documentary evidence, had
directed the reinstatement of the employees with only
75% back wages. Finding of the Tribunal was upheld
SERV ICE & LABO UR LAW S
by the High Court. Hence, Supreme Court, in
exercising its power under Article 136, could not have
interfered.
Fifty-five drivers who are members of the Respondent
Union were employed by Armed Forces Ex Officers
Mutli Services Cooperative Society Ltd. (the
Appellant) from 1998 through a settlement for pay and
allowances. As the settlement expired on 30.06.2004,
fresh negotiations between the employer and the
employees commenced but did not result in any easy
settlement due to claims for pay hike and demands for
permanency of casual employees. Conciliation
proceedings were invoked on 22.01.2007 and
proceedings before the Deputy Commissioner of
Labour, Pune were going on.
While the next date of conciliatory proceeding was
fixed on 05.02.2007, the employees resorted to strike
on 23.01.2007. On the same day, the Appellant filed a
complaint before the Industrial Court, asserting that
the strike was illegal, and the employees should be
made liable for unfair labour practices. The Industrial
Tribunal by an interim order dated 05.02.2007 directed
employees to refrain from obstructing the movement
of men, material and vehicles from the parking lots of
the Appellant, and holding violent demonstrations
within two hundred meters of Appellant’s premises.
The Industrial Tribunal later directed the Appellant to
allow the employees to join duties and the employees
in fact joined services on 16.03.2007. We may mention
here itself that two years later, i.e. on 27.11.2009, the
Industrial Tribunal by its final order declared the strike
carried out by the Respondents for the period between
23.01.2007 and 15.03.2007 as illegal in terms of Section
24(1)(a) of the Maharashtra Recognition of Trade
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SERV ICE & LABO UR LAW S
Unions And Prevention of Unfair Labour Practices Act,
1971.
During the pendency of the above referred
proceedings, that is, immediately after 16.03.2007 when
employees re-joined services, after the short period of
strike, the Appellant through individual letters dated
22.03.2007 ‘retrenched’ the services of all the fifty-five
employees, on the grounds that Appellant had closed
its business. By the said letter, the employees were
offered retrenchment compensation as per Section 25F
of the Industrial Disputes Act, 1947. The relevant
portion of the Termination Letter is:
“You are being informed that as the bus
services of the society have been broken
from 23 rd January, 2007 the concerned
companies have decided to stop their bus
services and as per that our transport
contracts have expired. In this situation as
the business is closed, it is not possible to
give you work hence there is no option but
to remove you from services.”
Respondent Union raised concerns with the
Conciliation Officer. They demanded reinstatement of
all fifty-five workmen with continuity of services and
back wages, contending that there was no closure of
the transport activities of the Appellant. They claimed
that the act of terminating all the employees is a virtual
closure, which is completely illegal.
While the matter was being negotiated, the Appellant
started offering reemployment to all the employees
through individual letters dated 13.09.2007, followed
by a public notice. This offer was on new terms and
conditions, and as fresh employment. This is an
important fact and as the narration of events would
witness, it had a direct bearing on the decision of the
Industrial Tribunal.
As the Conciliation Officer submitted a Failure Report,
the Government referred the dispute to the Industrial
Tribunal, Pune (the Tribunal) for answering the
demand of the workmen for reinstatement of fifty-five
516 I October 2022
drivers with continuity of service and full back wages.
Before the Tribunal, the parties examined thirty-one
witness and marked documents with respect to matters
such as strike, salary slips, retrenchment order, re-
employment offer, Appellant’s communication with its
business clients, etc.
By its Award dated 07.09.2017, the Tribunal answered
the reference in the affirmative by setting aside the
termination of employees and directing reinstatement.
While considering the legality of retrenchment, the
Tribunal noted that there was no complete shutdown
of the company’ s transport business, and that
retrenchment of all the drivers at one go amounted to
closure, meted out as a punishment for resorting to
strike. The fact that all the retrenched employees were
offered re-employment shortly thereafter further
evidenced the lack of bona fide intention in the act of
retrenchment. The Tribunal discarded the re-
employment offers as immaterial, as it forced the
employees to accept fresh appointment, losing their
long-standing service. The orders of termination were
set aside and the workmen were directed to be
reinstated with continuity of service and 75% back
wages, save eight employees who admitted to gainful
employment post retrenchment.
Aggrieved by the Award, the Appellant preferred Writ
Petition No. 1240 of 2018 before the High Court of
Bombay. The Respondent Union also filed Writ
Petition No. 5075 of 2018 against the Tribunal’s
decision to the extent of denial of back wages to eight
employees. The High Court affirmed the Tribunal’s
findings on all counts, and concluded that they were
well-founded on evidence and were in accordance with
law. Thus, it confirmed the reinstatement of employees
with 75% back wages and other consequential
benefits. It also confirmed the Tribunal’s denial of back
wages to the eight employees who admitted to being
gainfully employed. It is this order of the High Court
that the Appellant challenges in the present Civil
Appeal.
 SERV ICE & LABO UR LAW S
The Supreme Court affirmed the judgment of the High workman was gainfully employed or not is again a
Court of Judicature at Bombay inW.P. No. 1240 of 2018 question of fact, and the finding of the Tribunal as
dated 17.01.2019, and dismissed the Civil Appeal No. upheld by the High Court, cannot be interfered with
2393 of 2022. by the Supreme Court in exercising its power under
OPERATIVE PART Article 136 of the Constitution of India. The following
findings of the Tribunal are conclusive:
“As regards the last submission by Shri C.U. Singh,
“In so far as back wages to be paid to the workers
about the legality of awarding 75% back wages, it
are concerned, it is a matter of record that 27
was argued before us that the workmen were
workers have stepped into the witness box.
obligated to prove that they were not gainfully
Even the President of the Second Party union
employed after the dismissal from service. It was also
is also examined. All the workers and President
submitted that they must at least plead on oath that
of the Union have consistently stated in their
they were unemployed. Shri C.U. Singh took us
examination in chief that they have remained
through the evidence and on the basis of statements
unemployed after their termination and they
made therein has submitted that the parties have
failed to procure alternate employment also.”"
admitted to have worked at some place or the other
Reference: Supreme Court. Armed Forces Ex
through the pendency of the litigation.
Officers Mutli Services Cooperative Society
The Tribunal has considered the matter in detail and
Ltd. Vs. Rashtriya Mazdoor Sangh (INTUC),
after appreciating the oral and documentary
Civil Appeal No. 2393 of 2022 dt. 11.08.2022.
evidence, the Tribunal directed reinstatement of the
—————
employees with only 75% back wages. Whether a

IN B R IE F
Judge failed to look into merits of matter and passed cyclostyled orders – CriminalWrit Petition restored
on file of High Court. Harsh R. Kilachand & Anr. Vs. State of Uttarakhand & Ors., Criminal Appeal No. 886
of 2022 (SC).
High Court should not ordinarily embark upon enquiry into whether there is reliable evidence or not.
Jagmohan Singh Vs. Vimlesh Kumar & Ors., Criminal Appeal No. 741 of 2022 (SC).
Rejection of candidature for use of different language for filling up of application form and OMR answer
book. Union of India & Ors. Vs. Mahendra Singh, Civil Appeal No. 4807 of 2022 (SC).
Unless disability is attributable to or aggravated by military service and is more than 20%, entitlement
to disability pension does not arise. Union of India & Ors. Vs. Ex. Naik Ram Singh, Civil Appeal No. 9654 of
2014 (SC).
Claim for disability pension based on medical examination conducted 20 years after dischar ge. Union
of India & Ors. Vs. Ex. Sep. R. Munusamy, Civil Appeal No. 6536 of 2021 (SC).
If respondent’s father caste may not have mentioned in his school records, or elsewhere, would not
mean that he would have to be treated as non-Ganiga by caste. M.V. Chandrakanth Vs. Sangappa & Ors.,
Civil Appeal No. 4963 of 2022 (SC).

www.lawteller.com I October 2022 I 517

A doctor, and engineer, a rabbi and a lawyer were
debating who was the world's first professional. The D I D Y OU K N OW ?
Doctor said It must have been a doctor. Who else could Vi r g i n i a, U.S.
have helpd with the world's first surgery of taking a rib
It is illegal to flip a coin in a restaurant to
from Adam to create Eve, the first woman. No, said the
rabbi. It must have been a rabbi, since the Lord needed see who pays for a coffee.
someone to help preach his message to Adam and the
world. Wait, Said the engineer The world was created in
Oh i o , U.S.
6 days from nothing. Do you know what a master
engineering feat that must have been to create the whole Throwing a snake at anyone is illegal.
world into an orgnanized civilized place from utter choas?
And WHO created the chaos? said the lawyer.
Nevad a, U.S.
It is illegal to drive a camel on the highway.
A lawyer is about to go home for the night when a
client shows up, asking for his council. The lawyer Nevad a, U.S.
decides to stay late and work with the client.
Afterwards, the client asks how much he owes for the A man is forbidden from buying drinks for
lawyer's time. more than three people other than himself
"One hundred dollars," the lawyer responds. at any one period during the day.
The client pays him and walks out, at which point the Disclaimer - Lawteller Team is not responsible for the
lawyer realizes it's two hundred dollar bills stuck actuality of the above information as available in the public
together. This leaves the lawyer with a moral domain.
dilemma...
Does he tell his partner?

A hundred year-old man and his 98 year-old woman

contact a lawyer to arrange a divorce and lawyer asks
them "how long have you been married?"
"80 years" the man replies.
"Why do you want a divorce after all this time?" the
lawyer asks.
"We hate each other. I hate everything about her. I hate
how she talks, how she walks, how she sleeps, how she
chews her food, even how she breathes" the man replies.
"And she's ugly."
The lawyer looks at the woman, eyebrows raised.
"Yes, " she says, "and I hate him too. I hate his hobbies,
his attitudes, the way he treats people, his politics, I
cannot stand to be in his presence for more than five
minutes. The man is a pig. And he smells."
The lawyer asks "how long have you felt this way?"
"50 years" the mans replies.
"More like 60" says the woman.
"Why, yes. We do have an easy payment plan.
"Well then tell me, " asks the lawyer, "why have you
waited until now to get a divorce, if you've hated each You just make one easy payment of the
other for so long." total amount billed."
"We were waiting for the children to die." Courtesy - www.cartoonstock.com

518 I October 2022