2018 SCC Vol. 3 March 21, 2018 Part 1

Companies Act, 2013 — Ss. 421(3) and 433 — Limitation for appeal to Appellate Tribunal: Limitation period of 45 days in S. 421(3) plus additional 45 days grace period in its proviso, held, are peremptory and mandatory in nature. No further time can be granted beyond this total period. [Bengal Chemists & Druggists Assn. v. Kalyan Chowdhury, (2018) 3 SCC 41]

Constitution of India — Art. 226 — Existence of alternative statutory remedies (under SARFAESI Act in present matter) — Power to exercise writ jurisdiction in case of: Discretionary jurisdiction under Art. 226 is not absolute but has to be exercised judiciously in given facts of a case and in accordance with law. Normally a writ petition under Art. 226 ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well-defined exceptions as observed by Supreme Court in Chhabil Dass Agarwal, (2014) 1 SCC 603. [State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85]

Constitution of India — Arts. 21 and 136 — Right to bail — Factors and considerations for grant or refusal of bail: Need of humane approach while dealing with applications for remanding matter to police or judicial custody, stressed. There is overcrowding in jails due to non-adherence to basic principles of criminal jurisprudence regarding grant of bail and presumption of innocence. Even if grant or refusal of bail is entirely upon discretion of Judge, it must be exercised in a judicious manner and in a humane way as such remanding hampers dignity of accused howsoever poor he might be. [ Dataram Singh v. State of U.P., (2018) 3 SCC 22]

Contract and Specific Relief — Termination/Discharge of Contract — Termination/Repudiation for Breach of Contract: Once it is established that the party was justified in terminating the contract on account of fundamental breach thereof, then the said innocent party is entitled to claim damages for the entire contract i.e. for the part which is performed and also for the part of the contract which it was prevented from performing. [Maharashtra State Electricity Distribution Co. Ltd. v.  Datar Switchgear Ltd., (2018) 3 SCC 133]

Criminal Procedure Code, 1973 — S. 154 — FIR: Value to be attached to FIR depends upon facts and circumstances of each case. When a person gives a statement to police officer basing on it, FIR is registered. Capacity of reproducing things differs from person to person. Some people may have ability to reproduce things as it is, some may lack the ability to do so. Sometimes in the state of shock, they may miss the important details, because people tend to react differently when they come across a violent act. Merely because names of accused are not stated and their names are not specified in FIR, that may not be a ground to doubt contents of FIR and the case of prosecution cannot be thrown out on such count. [Latesh v. State of Maharashtra, (2018) 3 SCC 66]

Criminal Procedure Code, 1973 — S. 438 — Anticipatory bail — Denial of by High Court — Grant of the same by Supreme Court on terms — When warranted: Supreme Court on 15-9-2017, ordered petitioner to take steps to implead de facto complainant with notice to State as well as de facto complainant and in case petitioner is arrested, he was to be released on bail on furnishing a self-bond, subject to conditions that he shall cooperate with investigation and also to deposit Rs 10 lakhs before Supreme Court within six weeks. Registry was directed to keep amount in an interest-bearing fixed deposit in a nationalised bank, initially for a period of six months, to be renewed from time to time. On submission of de facto complainant, that he has no objection if protection under S. 438(2) CrPC is granted to appellant, in case he is permitted to withdraw amount deposited before Supreme Court and does not want to prosecute appellant, and counsel for appellant not having any objection with regard thereto. Without going into various other disputes, de facto complainant permitted to withdraw amount deposited before Supreme Court pursuant to order dt. 15-9-2017, along with interest accrued. In case of arrest, appellant be released on bail by investigating officer on his executing a bond of Rs 25,000 with two sureties of like amount, subject to other conditions under S. 438(2) CrPC and appellant to cooperate with investigation. [Bikash Manna v. State of W.B., (2018) 3 SCC 47]

Criminal Procedure Code, 1973 — S. 482 — Inherent power of High Court under — Proper mode of exercise of: On a petition filed under S. 482 CrPC for quashing of FIR/investigation into case under Ss. 406, 420, 465, 467, 468, 471 & 120-B IPC and Ss. 3(1)(iv) and (v), Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, order passed by High Court in, not adverting to merits of case within guidelines laid down by Supreme Court in Bhajan Lal, 1992 Supp (1) SCC 335. Hence, held, High Court’s order, set aside and matter remitted back to High Court to decide the lis afresh, within parameters of S. 482 CrPC, in view of law laid down in Bhajan Lal case. Liberty is granted to appellants to move an application for stay of investigation, if so advised. [Dinesh Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 114]

Criminal Procedure Code, 1973 — Ss. 482, 157 and 154 — Inherent powers of High Court under S. 482 — Exercise of, in context of challenge to FIR — How to be dealt with — Principles summarized: In order to examine as to whether factual contents of FIR disclose any prima facie cognizable offences or not, High Court cannot act like an investigating agency and nor can exercise powers like an appellate court. Question is required to be examined, keeping in view, contents of FIR and prima facie material, if any, requiring no proof. At such stage, High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is more so, when the material relied on is disputed. In such a situation, it becomes the job of investigating authority at such stage, to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. Once the court finds that FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow investigating machinery to step in to initiate the probe to unearth crime in accordance with the procedure prescribed in CrPC. [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104]

Employees Compensation Act, 1923 — S. 30 — Appeal — Scope of interference — Need for substantial question of law and proper consideration of findings of Commissioner: Commissioner held that appellant driver lost two toes of his left leg and that there were also burn injuries due to accident and awarded compensation of Rs 2,79,367 with interest @ 12% p.a. from expiry of one month from date of accident till realization. On appreciation of evidence High Court reduced compensation to a meagre sum of Rs 83,664 without discussion as to basis thereof while endorsing findings of fact as recorded by Commissioner, regarding injuries. But, according to High Court, it was not possible that claimant has lost earning capacity by 100%. The Supreme Court held that High Court has not referred to any discussion while reducing compensation to 1/3rd of what has been awarded by Commissioner, Workmen’s Compensation. Appeal before High Court against an award of Commissioner, Workmen’s Compensation is only on a substantial question of law. No substantial question of law was raised by Insurance Company either. Impugned order set aside and that of Commissioner, Workmen’s Compensation restored. [Osmanali Chous v. New India Assurance Co. Ltd., (2018) 3 SCC 49]

Family and Personal Laws — Family Arrangement/Settlement/Partition — Partition — When possible — Need for joint ownership of property concerned: Absolute owner cannot purport to transfer his absolute interest vide “partition”. Such “partition” has to be construed either as a gift deed or family settlement, for which necessary formalities, conditions or rules laid down for donation inter vivos or gift so as to enforce said document have to be complied with. [Theiry Santhanamal v. Viswanathan, (2018) 3 SCC 117]

Government Contracts and Tenders — Formation of Government Contract — Modes of entering into a Government Contract — Public Auction/Tender — E-Auction — e-Tender system: Bidder had not completed e-Tender system requirements. As a result, data submitted by bidder was lost on portal. This was not due to any technical glitch, but due to defective submission of proposal. Such actions of bidder, held, render bid invalid. Retrieval of lost data submitted by bidder and reconsideration of such data would amount to granting second opportunity to such bidder, which is impermissible. [Mhada v. Shapoorji Pallonji & Co. (P) Ltd., (2018) 3 SCC 13]

Income Tax Act, 1961 — S. 2(22)(e) (as amended in 1988) — Amendment brought about to the definition of “dividend” — Effect of: Matter regarding determination of meaning of the expression “shareholder” post amendment, if restricted only to a person who is a beneficial owner of the shares, referred to larger Bench. [National Travel Services v. CIT, (2018) 3 SCC 95]

Land Acquisition Act, 1894 — Ss. 11, 12 and 18(2) (as amended in State of U.P.) — Proper application for reference: In this case, the appellants had accepted the compensation under protest on the point of sufficiency of the compensation and made a specific request for reference under S. 18 on 24-7-1999, which indisputably was within the six month period of limitation. It is also seen from the communication from the Land Acquisition Officer to the appellants dt. 25-9-1999, on which date the time under S. 18 had not expired, that certified copy of the award had not been furnished to the appellants. However, a photocopy of the award was given, which the appellants were not inclined to acknowledge. Thus it was held, this is a case where the request under Section 18 of the Act made on 24-7-1999 should be treated as a proper application. Moreover, before rejection, the grounds had also been furnished after receipt of the certified copy of the award. [Shahid Jamal v. State of U.P., (2018) 3 SCC 52]

Land Acquisition Act, 1894 — Ss. 28, 34, 28-A and 18 — Non-award of interest under Ss. 28 or 34 — Appropriate remedy: Said dispute, held, can be raised only by taking recourse to Art. 226 of the Constitution. Reference under S. 18 or S. 28-A is not an alternative remedy available for non-award of interest under S. 28 or S. 34. [Union of India v. Pushpavathi, (2018) 3 SCC 28]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Compensation — Computation of — Multiplier: Deceased aged 23 yrs, parents being in age group of 40 to 45 yrs, High Court applied multiplier 15, taking age of parents into consideration. Following Sarla Verma, (2009) 6 SCC 121, Munna Lal Jain, (2015) 6 SCC 347, and five-Judge Bench judgment in Pranay Sethi, (2017) 16 SCC 680, it was reiterated, that legal position is that multiplier should depend on age of deceased and not on age of dependants. Hence, appellants were justified in insisting on applying multiplier 18. [Sube Singh v. Shyam Singh, (2018) 3 SCC 18]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Fatal accident — Compensation — Computation of income — Proof of: For deceased bachelor, aged 20 yrs, proceeding on a motorcycle dashed against by a truck leaving him in grievous injuries upon which he died on spot. Tribunal held driver of truck, and insurer jointly and severally liable together with owner, but refused to accept certificates for months of August, September and October 2008 produced by appellant father as proof of monthly earning of Rs 15,000, and adopted an income of Rs 6000 p.m. and for being a bachelor, deducted Rs 3000 p.m. towards personal expenses. It was held that Tribunal has given cogent reasons for declining to accept income certificates and no witnesses were examined on behalf of companies which were alleged to have issued certificates. Evidently there was a failure to establish that deceased, who was a student pursuing his C.A. was in receipt of a monthly income of Rs 15,000. Hence, assessment of income by Tribunal cannot be faulted. [Nagar Mal v. Oriental Insurance Co. Ltd., (2018) 3 SCC 130]

Motor Vehicles Act, 1988 — Ss. 2(30), 50, 166, 168, 173, 146(1) and 196 — Motor accident — Liability of “owner” of offending vehicle: Having regard to definition of “owner” under S. 2(30) of MV Act, 1988, held, the person in whose name motor vehicle stands registered (i.e. whose name is reflected in records of Registering Authority) would be treated as “owner” of vehicle for purposes of MV Act. Only where a person is a minor, the guardian of that minor would be treated as owner, and where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation or is under requisition, the person in possession of vehicle under that agreement or under requisition is treated as owner. [Naveen Kumar v. Vijay Kumar, (2018) 3 SCC 1]

Service Law — Recruitment Process — Eligibility criteria/conditions — Post of Psychologist — Advertisement inter alia stating “Graduation in Psychology/LT/BT/BEd in subject of Psychology” as eligibility criterion — Interpretation of: Use of stroke between graduate and LT/BT/BEd indicates that all were alternate qualifications and cannot be read to mean graduate in Psychology with LT/BT/BEd as done by High Court. Besides, from advertisement it is apparent that appointing authority was well aware of meaning of stroke (‘/’) which was used when either of qualifications were required while word “with” was used when both qualifications were required.  Further held, words “in Psychology subject” used as prefix clearly mean that all alternative qualifications were required to have Psychology subject i.e. “Graduation with Psychology/LT/BT/BEd in subject of Psychology”, and as such form one class. Furthermore, in terms of applicable 1991 Rules also qualification for post of Psychologist was MA in Psychology and LT/BT/BEd were not essential qualifications. Thus, non-possession of LT/BT/BEd did not disqualify appellant from being appointed as Psychologist since being postgraduate in Psychology he fulfilled statutory qualifications as well as eligibility criteria stipulated in advertisement. Thus, he could not be denied appointment on ground that he did not possess LT/BT/BEd qualifications. Respondents directed to issue appointment letter to appellant within stipulated time. [Ashish Kumar v. State of U.P., (2018) 3 SCC 55]

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