2018 SCC Vol. 8 September 14, 2018 Part 1

Arbitration and Conciliation Act, 1996 — Ss. 85, 7 and 8: Even if an arbitration agreement entered into after the 1996 Act had come into force were to make a reference to the applicable provisions of those under Indian Arbitration Act or the 1940 Act, such stipulation would be of no consequence and the matter must be governed under provisions of the 1996 Act. Further, an incorrect reference or recital regarding applicability of the 1940 Act would not render the entire arbitration agreement invalid and such stipulation will have to be read in the light of S. 85 of the 1996 Act and principles governing such relationship have to be under and in tune with the 1996 Act. [Purushottam v. Anil, (2018) 8 SCC 95]

Armed Forces — Promotion — Empanelment for Promotion — Entitlement to: In this case chances of being considered for promotion/empanelment for promotion were lost by respondent due to wrongful punishment imposed by GCM. Central Government by Order dt. 20-11-2013 annulled proceedings of GCM and setting aside punishment imposed with all “consequential benefits”. While determining the connotation of “consequential benefits”, it was held that matter which was directly in issue was correctness and validity of GCM proceedings. While annulling findings and effect of proceedings idea was to confer those benefits which were directly denied to officer. Said expression cannot be construed to mean that even promotions which were strictly on basis of comparative merit and selection must also stand conferred upon officer. Further held, though it is true that as result of pendency of GCM proceedings respondent was kept out of service for nearly nine years and as such his profile would show inadequacy to some extent but even Department was denied opportunity of properly assessing his profile. Impugned judgment directing appellants to take decision in view of opinion expressed by Law Officer for promotion of respondent to rank of Brigadier was held to be unsustainable. Besides, opinion of Law Officer was not consistent with provisions of relevant rules and law declared by Supreme Court in K.D. Gupta, 1989 Supp (1) SCC 416. The contention that respondent must be granted those promotions which his batchmates or juniors received and that he must also be considered for selection-based promotions unacceptable. Furthermore, though prejudice was caused to respondent by wrongly proceeding against him in GCM consequent to which he lost 9 yrs of service is apparent but sympathy cannot outweigh considerations on merit since respondent was found unfit for selection as “Colonel” by Selection Board (though he was granted time-scale promotion to rank of Colonel after putting in required service). [Union of India v. Ran Singh Dudee, (2018) 8 SCC 53]

Constitution of India — Art. 14 — Compensation for infringement of Art. 14 — When warranted: State is vicariously liable for public wrongs committed by its officials. Hence, payment of compensation to sufferers o public wrong, awarded. [United Air Travel Services v. Union of India, (2018) 8 SCC 141]

Constitution of India — Arts. 137 and 145 — Review under Art. 137: Power of review by Supreme Court as envisaged under Art. 137, is no doubt wider than review jurisdiction conferred by other statutes on Court. Art. 137 empowers Supreme Court to review any judgment pronounced or made, subject to provisions of any law made by Parliament or any rule made under Art. 145. However, application to review a judgment is not to be lightly entertained and Supreme Court could exercise its review jurisdiction only when grounds are made out as provided in Or. 47 R. 1, Supreme Court Rules, 2013. Review in a criminal proceeding is permissible only on ground of error apparent on face of record. Review is not rehearing of appeal all over again and is not appeal in disguise. In a review petition, it is not open to Court to reappreciate evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in review petition unless it is shown that there is an error apparent on face of record or for some reason akin thereto. Review is not rehearing of original matter. Power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to reopen concluded adjudications. Power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. [Mukesh v. State (NCT of Delhi), (2018) 8 SCC 149]

Criminal Procedure Code, 1973 — S. 401 — Revision against conviction: Condition imposed while admitting is not warranted in facts of case, hence, vacated. [M.V. Amreeth v. K. Venkata Krishna, (2018) 8 SCC 118]

Criminal Procedure Code, 1973 — Ss. 386 and 374 — Appeal against conviction: Passing of impugned order without considering defence evidence due to absence of appellant-defendant or his counsel on various dates posted for final disposal, not proper. [K.S. Kalinga Rayan v. State, (2018) 8 SCC 125]

Election — Panchayat Samiti — Disqualification — “Office of profit”— What is: Candidate holding post of Assistant Government Advocate is not in service of State Government within meaning of S. 139(1)(c) of Bihar Panchayat Raj Act, 1993, hence not disqualified from contesting Panchayat election. [State Election Commr. v. Janakdhari Prasad, (2018) 8 SCC 1]

Identification of Prisoners Act, 1920 — Ss. 3 to 5, 2(a) and 8 and Statement of Objects and Reasons: Magistrate’s permission is not mandatory for obtaining a specimen of fingerprints of the accused under S. 5 of Identification of Prisoners Act, 1920. [Sonvir v. State (NCT of Delhi), (2018) 8 SCC 24]

Income Tax Act, 1961 — Ss. 153-A, 158-BB and 158-BH r/w Ss. 132 and 132-A — Block assessment: In order to add any income in the block assessment, evidence of such income must be found in the course of the search under S. 132 or in any proceedings simultaneously conducted in the premises of the assessee, relatives and/or persons who are connected with the assessee and are having transaction/ dealings with such assessee. Further, any material or evidence found/collected in a survey which has been simultaneously made at the premises of a connected person can be utilised while making the block assessment in respect of an assessee under S. 158-BB r/w S. 158-BH and the same would fall under the words “and such other materials or information as are available with the assessing officer and relatable to such evidence” occurring in S. 158-BB. [CIT v. S. Ajit Kumar, (2018) 8 SCC 107]

Penal Code, 1860 — Ss. 302/149 — Murder trial — Unlawful assembly: In this case deceased was shot to death at night and involvement of appellant-accused along with four others was established. Conviction of appellant under Ss. 302/149 was upheld by High Court. The Supreme Court observed that any member of unlawful assembly can be convicted for criminal act with the aid of S. 149. It need not to be proved that he had committed an overt act. Hence, courts below were justified in concluding that appellant is liable to be convicted under S. 149 IPC, inasmuch as he is one of the members of unlawful assembly who had come to the scene of occurrence with common object of committing murder of deceased. Therefore, conviction of appellant under Ss. 302/149 was confirmed. [Prabhu Dayal v. State of Rajasthan, (2018) 8 SCC 127]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 — Ss. 13 and 34 — Civil suit in respect of a matter which DRT or DRAT is empowered to determine — Non-maintainability of: Mandate of S. 13 and, in particular, S. 34, bars filing of a civil suit and no civil court can exercise jurisdiction to entertain any suit or proceeding in respect of any matter which DRT or DRAT is empowered by or under the 2002 Act to determine. Further, no injunction can be granted by any court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the 2002 Act. [SBI v. Allwyn Alloys (P) Ltd., (2018) 8 SCC 120]

Service Law — Recruitment Process — Examination — Posts of School Lecturers for various subjects under Secondary Education Department — Examination: Assumption that key answers published is correct unless proved clearly wrong. Publication of key answers is good to achieve transparency. Furthermore, objections to key answers are to be examined by experts and thereafter corrective measures, if required, to be taken by examining body. [Richal v. Rajasthan Public Service Commission, (2018) 8 SCC 81]

Transfer of Property Act, 1882 — Ss. 8, 7 and 54 — Nemo dat quod non habet: Person is competent to transfer any property only if he has subsisting right, title or interest in it. If on date of transfer, right, title or interest of transferor stood extinguished (in this case under S. 27 of Limitation Act, 1963 by operation of law of adverse possession) transfer would be illegal and void. Right once extinguished by operation of law cannot be revived unless law itself provides therefore. [Eureka Builders v. Gulabchand, (2018) 8 SCC 67]

Wildlife (Protection) Act, 1972 — S. 39(1)(c) [as inserted by Act 44 of 1991 w.e.f. 2-10-1991]: Illegally obtained/procured elephant tusk is property of Government. Once it is treated to be property of Government, presumption under S. 69 of Kerala Forest Act, 1961 attracted. [Wildlife Warden v. Komarrikkal Elias, (2018) 8 SCC 114]

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