2018 SCC Vol. 2 February 21, 2017 Part 2

Civil Procedure Code, 1908 — Or. 41 Rr. 23, 23-A & 25 and Or. 5 — Remand for fresh trial on merits: As there was legal infirmity in not serving notice on all defendants, order of remand was justified. [Jayaprakash v. T.S. David, (2018) 2 SCC 294]

Civil Procedure Code, 1908 — Or. 6 R. 17 and Or. 7 R. 14 — Applications for amendment of pleadings and for production of documents — When may be allowed: In respect of application under Or. 6 R. 17, held, (i) when suit is still at initial stage that is when trial has not yet begun; (ii) where proposed amendment would not change nature of cause of action; (iii) where applications are not filed at belated stage; under these circumstances, courts should be liberal in allowing proposed amendment. Concerning Or. 7 R. 14 application, held, application for production of document(s) can be considered (i) when trial is at initial stage, and trial is yet to begin; and (ii) when application not filed at belated stage. [N.C. Bansal v. U.P. Financial Corpn., (2018) 2 SCC 347]

Constitution of India — Art. 226 — Habeas corpus — Custody of child — Inter-country dispute: Manner in which habeas corpus jurisdiction is to be exercised i.e. when question is one of immediate restoration of custody/ repatriation of child, as distinguished from wardship jurisdiction in which question is one of entitlement in law to custody of child, discussed. India is a non-signatory to international convention viz. Civil Aspects of International Civil Abduction. Welfare of child is predominant criterion. If considerable time has elapsed between removal of child from native country by any parent and steps taken for repatriation by writ petitioner parent, court would prefer an elaborate enquiry into all relevant aspects bearing on the child. Immediate restoration of child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise. Unless continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being. [Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309]

Consumer Protection — Consumer Forums — Generally — Inadequacy of Members/Presiding Officers, Resources and Infrastructure: As there is poor organisational set-up, grossly inadequate infrastructure, absence of adequate trained manpower, lack of transparency in selection process, absence of criteria of selection process, anomalous situation arising from service conditions of members of Consumer For a, directions were issued to frame rules by order dt. 21-11-2016 in All U.P. Consumer Protection Bar Assn., (2017) 1 SCC 444, to Union Government, State Governments and to National Commission as provided in Consumer Protection Act, 1986, reiterated. Further directions issued on 7-3-2017 after perusal of proposed Rules and Regulations, reiterated. However, in view of need for certain modifications in Rules and Regulations, which require further debate and deliberation, time granted and other directions also issued. [State of U.P. v. All U.P. Consumer Protection Bar Assn., (2018) 2 SCC 225]

Criminal Procedure Code, 1973 — S. 102(1): “Any property” includes any bank account creating suspicion about commission of an offence. Investigating officer (IO) in course of investigation has power to seize or prohibit operation of bank account of any person which may be found under circumstances creating suspicion of commission of any offence. Bank account need not be only of accused but can be any account creating suspicion about commission of offence. Even if name of a body/person with which accused concerned has an association (a trust in present case), is not included as accused in FIR but during investigation IO believes that persons named as accused are actively associated with that trust, and, that circumstances emerging from transaction(s) done by them from bank accounts pertaining to that trust create suspicion of commission of offence, IO can exercise his discretion to issue directions to seize those accounts. [Teesta Atul Setalvad v. State of Gujarat, (2018) 2 SCC 372]

Criminal Procedure Code, 1973 — S. 386 — Powers of appellate court in dealing with appeals: Principles summarised regarding powers of appellate court in dealing with appeals to direct retrial. [Issac v. Ronald Cheriyan, (2018) 2 SCC 278]

Education Law — Professional Colleges/Education — Engineering or Technical Colleges or MBA — AICTE Role and Duties — Technical education: Due to invalidation of degrees in Engineering by Court in Rabi Shankar Patro, (2018) 1 SCC 468, directions issued on clarifications of judgment regarding chance to prove merit to validate it by re-clearing Engineering exams under proper conditions. [Orissa Lift Irrigation Corpn. Ltd. v. Rabi Sankar Patro, (2018) 2 SCC 298]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 20 — Search and seizure: In this case of alleged recovery of contraband (charas) from gunny bags being carried by respondent-accused, High Court reversed conviction of respondents under S. 20. The Supreme Court held that going by number of discrepancies in prosecution case coupled with contradictory statements by prosecution witnesses, entire prosecution story is vitiated and leads to discrediting its version. Prosecution failed to establish commission of alleged offence by respondents beyond reasonable doubt. Evidence is scanty and lacking support to establish that contraband was really recovered from possession of respondents in the manner alleged by prosecution. The law, the court should follow, for awarding conviction under provisions of NDPS Act, is, “more stringent the punishment stricter the proof”. In such cases, prosecution evidence has to be examined very zealously so as to exclude every chance of false implication but, herein, prosecution story cannot be believed to award conviction to respondents. Accused deserve benefit of doubt. Therefore, reversal of conviction of respondents by High Court, confirmed. [State of H.P. v. Trilok Chand, (2018) 2 SCC 342]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 54, 35, 20(b)(ii)(C), 42 and 50 — Search and seizure: NDPS Act provides for a reverse burden of proof upon accused, contrary to normal rule of criminal jurisprudence for presumption of innocence unless proved guilty. This however does not dispense with requirement of prosecution to having first establish a prima facie case, only whereafter, burden will shift to accused. Mere registration of a case under NDPS Act will not ipso facto shift burden on to accused from the very inception. Compliance with statutory requirements and procedures shall have to be strict and scrutiny stringent. If there is any iota of doubt, benefit shall have to be given to accused. [Gorakh Nath Prasad v. State of Bihar, (2018) 2 SCC 305]

Penal Code, 1860 — Ss. 306 and 498-A — Bride committed suicide by consuming rat poison: As due to harassment by husband and in-laws for not bringing dowry, bride committed suicide by consuming rat poison. High Court upheld conviction of two appellant-accused (mother-in-law and husband) under Ss. 306 and 498-A. Validity of the conviction and sentence, affirmed. [Anusuiya v. State of M.P., (2018) 2 SCC 272]

Rent Control and Eviction — Eviction Suit/Trial: In eviction suit filed by landlord, only landlord and tenant are necessary parties. Landlord is required to plead and prove only two things (i) existence of relationship of landlord and tenant between parties; and (ii) grounds of eviction mentioned under relevant rent law. When these two things proved, eviction suit succeeds. Title of landlord in eviction suit is not relevant. If landlord fails to prove his title but proves relationship of landlord and tenant, and proves existence of any ground pleaded for eviction then his suit would succeed. On the other hand, if landlord proves his title but fails to prove relationship of landlord and tenant, then his suit would fail. Plaintiff or petitioner in proceedings, being dominus litis, cannot be compelled to implead any third party to proceedings unless that third party proves that he is necessary party and without his presence suit cannot be proceed and nor can be decided effectively. If there are more than one owners to suit premises, then any one of them can file eviction suit against tenant. It is not necessary that all owners should file suit jointly. In eviction suit, question of title or extent of shares of co-owners in suit premises cannot be decided and nor can it be made subject-matter of determination. Eviction proceedings are not concerned with respective rights of co-owners. These proceedings are concerned about eviction of tenant from suit premises. [Kanaklata Das v. Naba Kumar Das, (2018) 2 SCC 352]

Service Law — Recruitment Process — Examination — Re-evaluation — Correctness of answer key — Scope of judicial review: Court can recommend preventive measures such as (i) establishing a system of moderation; (ii) avoid any ambiguity in the questions, including those that might be caused by translation; and (iii) prompt decision be taken to exclude suspect question and no marks be assigned to such question. If a statute, Rule or Regulation permits re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then it must be permitted. If not, court may also permit it only if it is demonstrated very clearly, without any inferential process of reasoning or by a process of rationalisation and only in rare or exceptional cases that a material error has been committed. Onus is on candidate to demonstrate such clear and material incorrectness of answer key. Court should be extremely reluctant to substitute its own views against views of experts. Court should never take upon itself task to re-evaluate the answer sheets. Importantly, sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. There must be finality to results of public examination. Litigation cannot not go on for years. [Ran Vijay Singh v. State of U.P., (2018) 2 SCC 357]

Specific Relief Act, 1963 — S. 21 — Compensation in lieu of specific performance: Vendee under agreement to sell entitled to compensation in lieu of specific performance, where agreement to sell of immovable property becoming incapable of being performed due to acquisition of that property by Government under LA Act, 1894 paid by State for acquisition. [Urmila Devi v. Mandir Shree Chamunda Devi, (2018) 2 SCC 284]

Town Planning — Slum Rehabilitation/Development — Slum rehabilitation scheme: Due to inordinate delay in completion of Scheme, despite change of developer by SRA, change in scheme and building norms, builder gaining advantage of higher Floor Space Index (FSI), replacement of developer directed in terms below. SRA directed to invite, through advertisement, letters of intent from renowned builders/developers, who have capacity and experience to take up such a large project. Manner of advertisement, also stated. SRA also directed to take a bank guarantee of Rs 200 crores from successful builder. Developers/builders should indicate what benefit in kind or portion of their own free sale area they are prepared to part with for society of slumdwellers as slum-dwellers are owners of land. [Susme Builders (P) Ltd. v. Slum Rehabilitation Authority, (2018) 2 SCC 230]

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