2018 SCC Vol. 4 May 14, 2018 Part 3

Role of The National Courts of the Seat in International Arbitration: This article is the keynote address at the 10th Annual International Conference of the Nani Palkhivala Arbitration Centre, New Delhi, 17-2-2018. [The Role Of The National Courts Of The Seat In International Arbitration by Chief Justice Sundaresh Menon, (2018) 4 SCC (J-1)]

Penal Code, 1860 — S. 302 or S. 304 — Parameters to be taken into consideration while deciding question as to whether a case falls under S. 302 or S. 304: The parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, are as follows:(a) The circumstances in which the incident took place; (b) The nature of weapon used; (c) Whether the weapon was carried or was taken from the spot; (d) Whether the assault was aimed on vital part of body; (e) The amount of the force used; (f) Whether the deceased participated in the sudden fight; (g) Whether there was any previous enmity; (h) Whether there was any sudden provocation; (i) Whether the attack was in the heat of passion; and (j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner. [Lavghanbhai Devjibhai Vasava v. State of Gujarat, (2018) 4 SCC 329]

Indian Medical Council Act, 1956 — Ss. 10-A and 33 — Time Schedules: Amendment of Time Schedules under all MCI Regulations concerned, approved in Ashish Ranjan, (2016) 11 SCC 225, not interfered with. Applicant consortium given limited liberty to approach Supreme Court if there is some difficulty in getting students from State list or All India list. Ashish Ranjan v. Union of India, (2018) 4 SCC 333]

Narcotic Drugs and Psychotropic Substances Act, 1985 — Ss. 52-A, 67, 8/18 and 29 — Search and seizure: Due to discrepancies present in prosecution case, reversal of his conviction under Ss. 8/18 and 29 for recovery of contraband allegedly from possession of respondent-accused, by High Court, affirmed. [Union of India v. Jarooparam, (2018) 4 SCC 334]

Constitution of India — Art. 226: There was challenge to order dt. 15-11-2010 of Regional Transport Authority (RTA) whereby it declared 81 licences as fake licences, after a delay of more than 5 yrs. High Court of Delhi gave liberty to challenge said order of RTA by filing fresh writ petition under Art. 226 before High Court of Allahabad. Appellants after obtaining said orders of Delhi High Court filed fresh writ petition after five months. High Court of Allahabad, therefore, could not have dismissed said writ petitions on ground that there was a delay of more than 5 yrs from date of order of RTA. Hence, impugned order set aside. Matter remanded to High Court for deciding matter afresh on merit. [Arun Maan v. State of U.P., (2018) 4 SCC 339]

Industrial Disputes Act, 1947 — Ss. 17-B, 2(s) and 10 — Independent nature of proceedings under S. 17-B — Payment of full wages to workman pending proceedings in higher courts: During pendency of respondent Corporation’s appeal against finding that respondent was “workman” and reference maintainable, Supreme Court by interim order dt. 4-5-1999 directed Corporation to pay full wages last drawn by applicant on 1-9-1985 inclusive of maintenance allowance provided he was not gainfully employed elsewhere. It was held, nevertheless order dt. 4-5-1999 remained legal and valid, and being independent in nature is required to be given effect to i.e. order passed under S. 17-B does not merge with final order passed in appeal. Considering nature of controversy, long pendency of case, interim order dt. 4-5-1999 passed by Supreme Court, offer of Rs 2 lakhs made by Corporation irrespective of outcome of appeal and sum payable to applicant under various heads, applicant held entitled to Rs 7,50,000 in full and final settlement of all his claims. [Rajeshwar Mahto v. Birla Corpn. Ltd., (2018) 4 SCC 341]

Courts, Tribunals and Judiciary — Tribunals — Appointments to different Tribunals — Whether as per pre-existing procedure or as per interim procedure directed in Kudrat Sandhu, WP (C) No. 279 of 2017, order dt. 9-2-2018 (SC): Where selection process had been substantially complied with as per old procedure, or existing Selection Committee has same composition as provided in new Rules, selection procedure will continue unhindered by above interim order. Thus in case of CESTAT, DRT, DRAT, NCLAT, NCDRC, AFT and ITAT, selection/appointment would not be disturbed or would proceed to its logical conclusion. Where selection process not substantially complied with selection procedure as per interim order will apply. Thus in case of CAT, where no substantial steps are taken for appointment of administrative members, directions in interim order will apply. Where Chief Justice has nominated Chairperson for Search-cum- Selection Committee (SCSC) for making recommendations, selection process will continue and will not be affected by interim order. Thus in case of AAR, APTEL, Appellate Tribunal under SAFEMA Act, Railway Claims Tribunal, Airport Appellate Tribunal, TDSAT, selection process would continue unaffected by interim order. [Kudrat Sandhu v. Union of India, (2018) 4 SCC 346]

Armed Forces — Promotion — Non-promotion/Denial of promotion/Supersession — Promotion to post of Rear Admiral in Indian Navy — Moderation of Numerical grading by NSRO — Propriety: In this case, denial of promotion on basis of adverse remarks in ACRs for period 10-12-2007 to 28-11-2008 and consequential numerical downgrading, despite being amongst top few in batch, alleged. Tribunal while expunging adverse remarks declining to interfere with numerical gradings given to appellant for subsequent period finding that such adverse remarks had no bearing on numerical grading given for period thereafter and did not adversely affect his case from being considered for promotion. It was held, no interference with judgment of AFT called for since as rightly found one particular adverse report which stood expunged did not affect succeeding reports. Besides, though for periods from 2-1-2009 to 27-1-2012 appellant was given higher numerical grading by IO but NSRO moderated same considering overall profile of appellant which was in tune with ACRs of appellant recorded in previous years. Besides, possible that higher grading of appellant was due to his deputation during that period. System of PARB which is unique to Navy was introduced to achieve such moderation and Chief of Naval staff in his capacity as SRO/NSRO was competent to do so. Moreover, though appellant was a good officer but his assertion that prior to 2009 he was ranked No. 1 in Merit List factually incorrect. Besides, all officers who were promoted were senior to appellant and no junior had superseded him. [P.K. Banerjee v. Union of India, (2018) 4 SCC 355]

Civil Procedure Code, 1908 — Or. 26 Rr. 9, 13 and 14 — Demarcation of land — Proper procedure for — Commission to demarcate land — Need to challenge findings of Commission/cross-examine persons concerned at appropriate stage: In this case, held, demarcation as per Commission was correct. Thus, consequential finding that it was appellant Municipal Council that had encroached upon land of respondent plaintiffs, affirmed. [Municipal Council, Bawal v. Babu Lal, (2018) 4 SCC 369]

Entertainment, Amusement, Leisure and Sports — Entertainment & Leisure Establishments/Hotels/Restaurants and Tourism and Services — Licensing, Pricing and Permissible Activities — Regulation of restaurants: Bangalore City Licensing and Controlling of Places of Public Entertainment Order, 2005 issued under S. 31 of the Karnataka Police Act, 1963 regulating restaurants displaying “live band music”, “cabaret dance” and “discotheque” and imposing licence conditions dealing with public safety, comfort, convenience, morality, and law and order and said requirement of licence and its conditions, held, not violative of Arts. 14 and 19. Directions issued for strict compliance with and enforcement of said requirement and conditions. [Karnataka Live Band Restaurants Assn. v. State of Karnataka, (2018) 4 SCC 372]

Penal Code, 1860 — Ss. 307, 147, 148, 323 and 504 r/w S. 149 — Sentence — Compensation to victim — Additional higher amount of fine — Grant of: Accused persons directed to pay additional higher amount of fine to victim, in lieu of further sentence of incarceration as fact that accused persons had already undergone some period in jail, that incident occurred in year 2007 and that since parties have purchased peace, was considered. [State of Karnataka v. Kaisarbaig, (2018) 4 SCC 403]

Criminal Procedure Code, 1973 — S. 167(2) and S. 173 — Right to default bail if charge-sheet not filed within prescribed period, in this case 90 days — When accrues/becomes invocable: As State first filed application for extension of time for filing charge-sheet, that too prior to expiry of 90 days. Thereafter accused filed prayer for bail under S. 167(2) r/w S. 21(2)(b) MCOCA. It was held, only upon rejection of prayer for extension of time sought for filing charge-sheet, right in favour of accused for grant of statutory bail under S. 167(2) r/w S. 21(2)(b) MCOCA could have ignited. Unless prayer for extension of time rejected, no right would accrue in favour of accused much less to consider his application for grant of statutory bail. In such cases it is duty of court to first deal with prayer of extension of period to file charge-sheet. Further during pendency of prayer for extension of time for filing charge-sheet, supplementary charge-sheet was filed. Accused in meantime was being remanded to judicial custody. Therefore, High Court not granting relief to accused on this count upheld. [Rambeer Shokeen v. State (NCT of Delhi), (2018) 4 SCC 405]

Penal Code, 1860 — Ss. 302/149 — Formation of unlawful assembly armed with deadly weapons, with common object to commit murder — Appreciation of evidence: In this case, evidence of injured eyewitness was trustworthy, his evidence stands corroborated by another eyewitness and disclosure statement of accused leading to recovery of murder weapons. Hence, contention that complainant party were aggressors and accused acted in self-defence, rejected. Injuries sustained by accused were simple in nature, and it was not incumbent upon prosecution to explain such injuries. Therefore, conviction and sentence of imprisonment imposed upon accused, confirmed. [Dashrath v. State of Chhattisgarh, (2018) 4 SCC 428]

Constitution of India — Arts. 124 and 137 — Appointment of Judges to Supreme Court and High Courts: Primacy of judiciary in this regard, as re-affirmed in Supreme Court Advocates-on-Record Assn., (2016) 5 SCC 1. Review petitions against, rejected. [Satya Veer Sharma v. Supreme Court of India, (2018) 4 SCC 432]

Juvenile Justice (Care and Protection of Children) Act, 2015 — Ss. 4, 7, 106 and 107 — Implementation of JJ Act: Need of evaluation, assessment and social audit, stressed because in spite of several years from date of enactment of JJ Act (in its old and new avatars), it has not been effectively implemented. Laws relating to children like 2000 Act and JJ Act must be effectively implemented. State and policy-makers must realise constitutional obligation in this regard. Children deserve dignified treatment. Merely because they have no voice, does not mean that they would be compelled to live in conditions that are uncomfortable. High Courts directed to establish child-friendly courts for implementing JJ Act in its true spirit. [Sampurna Behura v. Union of India, (2018) 4 SCC 433]

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