2016 SCC Vol. 3 March 14, 2016 Part 1

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Civil Procedure Code, 1908 — S. 24 — Transfer of matrimonial proceedings: There was no reason why divorce case be not transferred to Jamnagar when other proceedings between parties already pending at Jamnagar, hence, transfer of proceedings from Rajkot to Jamnagar, allowed. [Tejalben v. Mihirbhai Bharatbhai Kothari, (2016) 3 SCC 69]

Civil Procedure Code, 1908 — S. 35-A and Or. 6 R. 15 & Or. 18 R. 4 — Imposition of exemplary costs: Sanctity of affidavits filed by parties has to be preserved and protected and at the same time filing of irresponsible statements without any regard to accuracy has to be discouraged. Filing of false affidavit should be effectively curbed with a strong hand to preserve purity of judicial proceedings. Hence, imposition of costs by High Court of Rs 10 lakhs on petitioner for filing a false or misleading affidavit in court, affirmed. [Sciemed Overseas Inc. v. BOC India Ltd., (2016) 3 SCC 70]

Civil Procedure Code, 1908 — Ss. 100 and 103 — Second appeal — Scope of interference: Interference with concurrent findings of courts below on pure question of fact, in second appeal, not permissible unless such findings are based on no evidence or are perverse. Said determination should be based on a reasonable man’s inference on facts. To the reasonable man, if conclusion on facts in evidence made by court below is a possible one, there is no perversity, and if not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity, nor will a wrong finding of fact by itself constitute a question of law. In order to constitute a question of law, the wrong finding should stem out of a complete misreading of evidence or it should be based only on conjectures and surmises. [Damodar Lal v. Sohan Devi, (2016) 3 SCC 78]

Constitution of India — Art. 136 — Scope of interference — Interim/Interlocutory orders/Injunction/Stay: In view of admission of appeal by High Court, it would be in the interest of parties concerned to get that appeal disposed of at the earliest. Hence, High Court directed to dispose of appeal expeditiously and preferably within six months from date of present order. [Asha Shrichand Raheja v. Purushotam Vishandas Raheja, (2016) 3 SCC 98]

Constitution of India — Arts. 51-A(g) & (h), 21, 48, 48-A, 14 to 17, 19 and 29 — Animal rights: Jallikattu and other forms of bulls race cause trouble, pain and stress to bulls and it is contrary to provisions of PCA Act. Supreme Court has adjudged this particular issue A. Nagaraja, (2014) 7 SCC 547, in backdrop of Arts. 51-A(g) and (h) of Constitution of India. There can be no shadow or trace of doubt that the Constitution of India is an organic and compassionate Constitution. [Compassion Unlimited Plus Action v. Union of India, (2016) 3 SCC 85]

Consumer Protection — Services — Insurance — Theft/Burglary insurance: As per cls. 4 and 5 of proposal form (which was part of insurance policy) r/w cl. 12 of insurance policy, items kept in display window or lying out of safe, though covered under the policy during daytime in business hours, were excluded under the policy after business hours at night. Meaning thereby, if burglary was committed of items kept in display window or lying out of safe during daytime in business hours then appellant insurer was liable to reimburse the loss in respect thereof under the policy but not when burglary of such items was committed after business hours at night. In order to claim benefit of policy in respect of such articles after business hours, it was obligatory upon insured to keep such items inside safe during night hours till opening of shop on next day. Thus, having regard to clear and unambiguous wording of aforesaid clauses of policy in relation to above condition, claim made by respondent insured with respect to stolen articles which were lying at night (when burglary took place) in display window and out of safe, held, was not covered under the policy concerned. Respondent did not pay any additional premium to get coverage of aforesaid two instances to avoid rigours of cls. 4, 5 and 12. Consequently, claim made by respondent with respect to said stolen articles was liable to be rejected. [United India Insurance Co. Ltd. v. Orient Treasures (P) Ltd., (2016) 3 SCC 49]

Criminal Procedure Code, 1973 — Ss. 154 and 173(8) and 300 — FIR — Second FIR — Permissibility of: There can be no second FIR in the event of any further information being received by investigating agency in respect of the same offence or same occurrence, or, same transaction giving rise to one or more offences for which charge-sheet has already been filed by investigating agency. Recourse available with investigating agency in said situation is to conduct further investigation, normally with leave of court as provided under S. 173(8) CrPC. [Awadesh Kumar Jha V. State of Bihar, (2016) 3 SCC 8]

Criminal Trial — Investigation — Fresh investigation/Reinvestigation or further investigation: The extraordinary power of constitutional courts in directing CBI to conduct investigation in a case must be exercised sparingly, cautiously and in exceptional situations, when it is necessary to provide credibility and instil confidence in investigation or where incident may have national or international ramifications or where such order may be necessary for doing complete justice and for enforcing fundamental rights. Each of the determinants is complete and independent by itself to justify exercise of such power and is not interdependent on each other. In facts and circumstances of instant case, CBI unhesitatingly entrusted with the task of undertaking a de novo investigation in the incident of brutal assassination of appellant’s husband who was a sitting MLA, in broad daylight under public gaze, by rival candidate. [Pooja Pal v. Union of India, (2016) 3 SCC 135]

Criminal Trial — Witnesses — Hostile witness — Testimony of — Extent to which may be relied on: Whenever a prosecution witness turns hostile, his testimony cannot be discarded altogether. [Krishan Chander v. State of Delhi, (2016) 3 SCC 108]

Evidence Act, 1872 — S. 11 — Plea of alibi — Nature of — When to be proved: Word alibi means “elsewhere”. Plea of alibi is not one of the General Exceptions contained in Ch. IV IPC. It is rule of evidence recognised under S. 11, Evidence Act. However, plea of alibi taken by defence is required to be proved only after prosecution has proved its case against accused. [Darshan Singh v. State of Punjab, (2016) 3 SCC 37]

Hindu Marriage Act, 1956 — Ss. 13(1)(i) (a) and 13-B(1) & (2): Matter disposed of in terms of settlement and appearance before Supreme Court in person of husband and wife, as out of the amount of Rs 29.50 lakhs as alimony, fixed by High Court, Rs 21 lakhs already paid before High Court and further Rs 5 lakhs deposited with Family Court. [Priyanka Chawla v. Amit Chawla, (2016) 3 SCC 126]

Insurance — Motor insurance — Insurer when may avoid liability towards loss suffered by owner of vehicle in motor accident: Claim of Rs 1,64,033 towards repair of insured goods vehicle which met with an accident on account of rash and negligent driving of offending vehicles, wherefor FIR was also registered, rejected by respondent Insurance Company on ground of contravention of terms and conditions of policy inasmuch as driver allowed six passengers to travel in vehicle, when permitted load was only 1+1. To avoid liability, Insurance Company must not only establish defence claimed, but also establish that breach of policy was so fundamental that it ended contract/that breach concerned caused the accident. Mere factum of carrying more passengers than permitted capacity in goods carrying vehicle by insured does not amount to fundamental breach of terms of policy. Further held, burden of proof to establish such breach on part of insured/causality rests with Insurance Company. [Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100]

Motor Vehicles Act, 1988 — S. 166(2) — Territorial jurisdiction of Tribunal: When accident occurred outside jurisdiction of Tribunal, claimant too resided outside its jurisdiction but respondent Insurance Company carrying on business within its jurisdiction, hence, claim petition, maintainable before such Tribunal. [Malati Sardar v. National Insurance Co. Ltd., (2016) 3 SCC 43]

Negotiable Instruments Act, 1881 — Ss. 138, 139 and 118(a) — Dishonour of cheque issued as security for discharge of a debt or other liability: Conviction of guarantor/surety who had issued cheques as security for payment of amount due by principal debtor, as principal debtor had defaulted, confirmed. [Don Ayengia v. State of Assam, (2016) 3 SCC 1]

Penal Code, 1860 — S. 302 or S. 304 Pt. II [Ss. 454/376/302 and 300] — Culpable homicide or murder: As Respondent-accused and one other (since acquitted), entered house of victim and committed rape on her and after pouring kerosene oil, set her ablaze and in course of her treatment, she died after 2 months, intention of accused to cause death was present, hence, conviction under S. 302, restored. [State of Assam v. Ramen Dowarah, (2016) 3 SCC 19]

Penal Code, 1860 — Ss. 302/34 — Murder trial — Appreciation of evidence: There is no impediment for recording conviction based upon uncorroborated testimony of single witness, if it is reliable. [Sudip Kumar Sen v. State of W.B., (2016) 3 SCC 26]

Penal Code, 1860 — Ss. 302/34 or Ss. 304 Pt. I/34 and Ss. 307/34 & S. 452 [S. 300 Thirdly] — Culpable homicide or murder: Death occurred 62 days after occurrence and proximate cause of death was septicaemia due to injuries caused in the incident. As per evidence of doctor who examined deceased in hospital, deceased was discharged from hospital in good condition and he survived for 62 days. No opinion was elicited from the doctor who examined deceased in hospital or the doctor who conducted post-mortem that head injury sustained by deceased was sufficient in ordinary course of nature to cause death. Having regard to fact that deceased survived for 62 days and that his condition was stable when he was discharged from hospital, court cannot draw inference that intended injury caused was sufficient in ordinary course of nature to cause death so as to attract S. 300 Thirdly IPC. Therefore, conviction of appellant, altered from S. 302 to S. 304 Pt. I. [Sanjay v. State of U.P., (2016) 3 SCC 62]

Penal Code, 1860 — Ss. 398 and 401: Reduction of sentence, to less than the prescribed minimum, impermissible. [Parveen v. State of Haryana, (2016) 3 SCC 129]

Service Law — Recruitment Process — Eligibility criteria/conditions — Post of Librarian: As per amended R. 4 of Bihar District Council Secondary and High Secondary Teacher (Employment and Service Conditions) Manual, 2006, for appointment as Teachers/Librarians, candidates must possess graduation degree from any recognised university with minimum 45% marks. Order dt. 25-11-2008 declared that degree of Sahityaalankar awarded by Deoghar Vidyapeeth was not equivalent to graduation degree. High Court in Reeta Srivastava, CWJC No. 13343 of 2011, order dated 7-5-2012 (Pat) and other connected matters found that degree of Sahityaalankar was not equivalent to graduation degree. Hence, impugned judgment directing appellant State to redo entire selection process for post of Librarian, granting respondents who possessed degree of Sahityaalankar equivalence with graduation degree, set aside and matter remanded to High Court for consideration afresh. [State of Bihar v. Sanjay Kumar, (2016) 3 SCC 33]

Trusts and Trustees — Wakfs — Wakf Property — Interim arrangement: To conserve/prevent misuse of wakf property, appellant permitted to work out remedy, as per liberty granted in impugned judgment, before an appropriate forum and initiate process within one month and to also seek appropriate interim relief from authority concerned. However, in interest of both parties, interim order of High Court to run day-to-day expenses of Trust by Trustees presided over by local Mamlatdar with representation from both appellants and respondents, to continue for eight weeks so as to enable appellant to work out remedies. [Kasamsha Ramjanisha Diwan v. Gujarat State Wakf Board, (2016) 3 SCC 132]

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