2017 SCC Vol. 5 June 28, 2017 Part 5

Advocates Act, 1961 — S. 35 — Professional misconduct — Gross negligence results in misconduct: Involvement of moral turpitude or delinquency needs to be examined for deciding gross negligence. Moral turpitude or delinquency need not receive narrow construction. Conduct of advocate contrary to honesty or good morals or conduct which is unethical, involves moral turpitude. Callous disregard for interest of client can be characterised as conduct unbefitting an advocate. Any conduct making advocate unworthy to belong to noble fraternity of lawyers or makes an advocate unfit to be entrusted with responsible task of looking after interest of litigants, must be regarded as conduct involving moral turpitude. [T.A. Kathiru Kunju v. Jacob Mathai, (2017) 5 SCC 755]

Andhra Pradesh Police Subordinate Service Rules — Rr. 15 and 2 & Annexure 1 r/w Rr. 3 and 5, A.P. Police Service Rules, 1966 — Reserve Sub-Inspector selected by transfer and appointed as Sub-Inspector (Civil): Service rendered as Reserve Sub-Inspector, cannot be considered for calculating 6 yrs of service as Sub-Inspector (Civil) for recruitment by transfer to post of Inspector. [Palure Bhaskar Rao v. P. Ramaseshaiah, (2017) 5 SCC 783]

Arbitration Act, 1940 — S. 30 — Award passed by arbitrator in ignorance of/without duly considering/consciously disregarding terms of contract (applying contract between head contractor and head sub-contractor i.e. wrong contract to dispute between head sub-contractor and its subcontractor, instead of contract which actually governed the latter relationship) — Interference by court — Justifiability of: Arbitrator cannot ignore law or misapply law. Ignorance of terms of contract by arbitrator amounts to jurisdictional error and such errors can be corrected by court. Deliberate departure or conscious disregard of contract not only manifests disregard of his authority or amounts to misconduct but may amount to legal mala fides as well. [Sharma & Associates Contractors (P) Ltd. v. Progressive Constructions Ltd., (2017) 5 SCC 743]

Civil Procedure Code, 1908 — S. 100 — Second appeal — Non-consideration of substantial question of law articulated in memo of second appeal: Issues as to claim of joint tenancy based on judgment of Supreme Court and requiring a determination of its applicability, and purported surrender of said joint tenancy to defraud purported joint tenant, etc. raised are substantial question(s) of law. [Gauri Shankar v. Rakesh Kumar, (2017) 5 SCC 792]

Constitution of India — Art. 21 — Speedy conclusion of criminal trials and appeals: In view of directions already having been issued by Supreme Court in a number of cases on this issue, High Courts must frame guidelines and take steps to effectuate those directions. Hence, all High Courts to frame annual action plan fixing a tentative time-limit for subordinate courts for concluding criminal trials of persons in custody and other long pending cases and monitor implementation of such timelines periodically. Furthermore, High Courts to take other steps consistent with the directions already issued by Supreme Court for expeditious disposal of criminal appeals pending in High Courts where persons are in custody, by fixing priority having regard to the time period of detention. Various reasons and factors contributing to the delay, considered and accordingly further directions issued to High Courts in this regard. Directions also issued re expeditious disposal of bail applications, particularly where trials/appeals had been pending for long. [Hussain v. Union of India, (2017) 5 SCC 702]

Consumer Protection Act, 1986 — S. 24-A — Limitation: The provision of limitation in the Consumer Protection Act cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer’s claim. [National Insurance Co. Ltd. v. Hindustan Safety Glass Works Ltd., (2017) 5 SCC 776]

Criminal Procedure Code, 1973 — S. 439 — Bail — When cannot be granted: As trial was unnecessarily prolonged by accused and there were number of attacks on prosecution witnesses, leading to death of two. Even lady investigating officer was threatened by hired assassin. Reliance was placed on fictitious document for securing bail. Bail, hence, rejected and FIR for such fictitious reliance, directed to be registered. Exemplary costs of Rs 1,00,000, also imposed. [Asha Ram v. State of Rajasthan, (2017) 5 SCC 807]

Criminal Procedure Code, 1973 — Ss. 204, 190(1)(a), 200 and 202 — Criminal complaint — Issue of process: Situation where complainant supports facts on oath that he has personal knowledge of them distinguished from situation where complainant has no personal knowledge of the facts, the only condition requisite for issue of process in former case is that complainant’s deposition must show some sufficient ground to proceed with complaint. Unless Magistrate is satisfied that there is sufficient ground to proceed or sufficient material to justify the issue of process, he should not order issue of process. On the other hand, where complainant has no personal knowledge of allegations made in complaint, Magistrate should satisfy himself upon proper materials that a case is made out for issue of process. Wide discretion given under the law to Magistrate with respect to grant or refusal of process should be exercised with proper care and caution. [K. Sitaram v. CFL Capital Financial Service Ltd., (2017) 5 SCC 725]

Criminal Trial — Acquittal — Acquittal of co-accused/some accused/Benefit of their acquittal — Acquittal of co-accused: As acquitted accused did not assault the informant but has allegedly instigated, hence appellant accused cannot be given benefit of acquittal as was given to acquitted accused on ground of parity. [Dinesh Yadav v. State of Jharkhand, (2017) 5 SCC 764]

Negotiable Instruments Act, 1881 — Ss. 138 proviso (b) and 142(b) — Demand notice under proviso (b) to S. 138 — If within limitation: In this case, two consecutive notices sent by payee by registered post to correct address of drawer of cheque: first one sent within limitation period of 15 days but same was returned with postal endorsement “intimation served, addressee absent”, whereas second one sent after expiry of stipulated period of limitation, it was held that first notice would be deemed to have been duly effected by virtue of S. 27 of General Clauses Act and S. 114 of Evidence Act though drawer was entitled to rebut that presumption, but in absence of rebuttal, requirement of S. 138 proviso (b) would stand complied with. Subsequent notice should be treated only as reminder and would not affect validity of first notice. Provisions should be so interpreted in consonance with object which legislation sought to achieve that right of honest lender is not defeated. [N. Parameswaran Unni v. G. Kannan, (2017) 5 SCC 737]

Penal Code, 1860 — S. 302 or S. 304 Pt. I: In this case , husband assaulted wife with brick in fit of anger, in his house, after a quarrel, resulting in her death, hence, High Court, in present case correctly converted appellant’s conviction from S. 302 to S. 304 Pt. I and awarded him 10 yrs’ RI with fine and default stipulation, instead of death sentence. [Devendra Nath Srivastava v. State of U.P., (2017) 5 SCC 769]

Penal Code, 1860 — S. 304 Pt. I or Pt. II — Relative scope of, explained: If there is intent and knowledge then the same would be a case of S. 304 Pt. I and if it is only a case of knowledge and not intention to cause murder or bodily injury then the same would fall under S. 304 Pt. II. [Surain Singh v. State of Punjab, (2017) 5 SCC 796]

Penal Code, 1860 — S. 354 — Molestation of a girl about 15 yrs of age — Conviction of accused — Validity of: Mere knowledge that the modesty of a woman is likely to be outraged is sufficient to attract Section 354 IPC. Statements made to person authorized by state govt. to investigate the matter admissible u/s 157 Evidence Act. [S.P.S. Rathore v. CBI, (2017) 5 SCC 817]

Penal Code, 1860 — Ss. 302 & 201 or S. 306 — Circumstantial evidence — Death by strangulation (homicide) or by burning (defence plea of suicide in present case): In this case where woman and her daughter were found dead in their house, having burn injuries, Respondent-accused (husband of victim woman) lodged written report regarding incident to the police, trial court convicted respondent husband under Ss. 302 and 201 but High Court converted conviction to S. 306. While determining the validity of the order of High Court, Supreme Court held that medical evidence clearly shows that deaths were as a result of strangulation and not from burn injuries and their bodies were set afire in order to create an impression as if they had died of burn injuries. Finding by trial court was therefore completely correct, as it is impossible to assume how wife of respondent could have strangulated herself and then attempted to set herself afire. View taken by High Court is, therefore, wholly unjustified and there could not have been conviction of respondent under S. 306 IPC. Moreover, there is nothing on record to conclusively establish that respondent was author of crime. Circumstances do not rule out every other hypothesis except guilt of respondent. However strong the suspicion be, respondent is entitled to benefit of doubt and also cannot be convicted under S. 302 IPC. Hence, the respondent stands acquitted. [State of Rajasthan v. Ramanand, (2017) 5 SCC 695]

Penal Code, 1860 — Ss. 302/149 — Murder trial — Reversal of acquittal by High Court — High Court substituting its view for that of trial court — When permissible — Principles summarized: Reversal of acquittal by High Court is not permissible when it is based on a possible view, which appellate court may very well disagree with, but which view of trial court is not incorrect. “Possible view” of trial court which appellate court may very well disagree with but which cannot be interdicted, distinguished from “incorrect view” of trial court which must be interdicted by appellate court. So long as view of trial court can be reasonably formed, regardless of whether High Court agrees with the same or not, verdict of trial court cannot be interdicted and view of High Court supplanted over and above the view of trial court. [Hakeem Khan v. State of M.P., (2017) 5 SCC 719]

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