2018 SCC Vol. 8 September 28, 2018 Part 3

Constitution of India — Art. 145 — Chief Justice as master of roster — Practice and procedure: “Chief Justice” in this context under Supreme Court Rules cannot be read as collegium of first five Judges. While discharging administrative function of the Court, Chief Justice in his individual capacity has prerogative to constitute different Benches and allocate cases to those Benches, in accordance with Supreme Court Rules, 2013 and Handbook on Practice and Procedure and Office Procedure (2017). This function of Chief Justice is different from appointment of Judges of Court under Art. 124 in which context expression “Chief Justice” can be read as collegium of Judges. Discharging function of constitution of Benches and listing of cases by collegium would entail practical difficulties and would be unworkable. [Shanti Bhushan v. Supreme Court of India, (2018) 8 SCC 396]

Constitution of India — Art. 21 — Deaths/Fatal injuries in road accidents/potholes: Directions issued for mandatory cover of thirdparty insurance in case of two-wheelers and cars. [S. Rajaseekaran v. Union of India, (2018) 8 SCC 447]

Constitution of India — Arts. 226 and 136 — CBI investigation — Power of Court in respect of: Freedom of CBI to determine after preliminary enquiry, whether case was such that it warranted CBI investigation having national or international ramifications, or, could be left to State Police, being an ordinary criminal matter, discussed. Directions that Court may issue after such determination by CBI also noted. Union of India v. Sunil Tripathi, (2018) 8 SCC 463]

Criminal Procedure Code, 1973 — S. 438 r/w Ss. 420 and 409 IPC — Anticipatory bail — Interference by Supreme Court: In this case under an agreement entered into between the appellant and Bihar State Food and Civil Supplies Corporation Ltd., the appellant undertook to mill paddy. The agreements inter alia required the appellant/accused to furnish a bank guarantee equivalent to the value of paddy issued to him and in case he was unable to furnish such bank guarantee to pledge unencumbered immovable property for the equivalent sum (in one of the category of cases, there was no requirement of furnishing any bank guarantee and all that the agreement insisted upon was furnishing of security). Corporation alleged that though the appellant(s) was supplied paddy, he failed to return rice and thus misappropriated and cases were registered against the appellant for the offences punishable under Ss. 409 and 420 IPC. By order dt. 28-2-2017, the Court while refusing to cancel the anticipatory bail/bail granted to the miller/accused added the inter-alia, condition that the accused in all the FIR(s), will ensure that bank guarantee, if not furnished, is furnished and if lapsed, is renewed. In this case, rejecting the contention that the bank guarantee was for the defalcated sum, held, that the expression “bank guarantee” used in Condition 1 pertained to bank guarantee which the miller concerned was obliged, in terms of the agreement in question to furnish and the obligation to furnish the bank guarantee and to keep it alive was referable to the terms of the agreement and not to the “defalcated sum”. Further, if according to the terms of the agreement and the benefit enjoyed by the accused concerned, he had already pledged unencumbered immovable property in the equivalent sum, there was no requirement to furnish and to keep alive additional bank guarantee. Further directed that if on account of failure to submit and to keep the bank guarantee alive in respect of the “defalcated sum”, any benefit of bail/anticipatory bail was withdrawn and orders of non-bailable warrants were issued, such orders stood cancelled and recalled. [Arvind Tiwary v. State of Bihar, (2018) 8 SCC 475]

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 — Ss. 7-A and 14-B — Remand — When warranted: High Court by impugned judgment dismissed appellant’s claim for recovery of dues and damages for delayed payment amounting to Rs 91,585, for non-payment of Provident Fund Contribution, without dealing with issues raised, while using expression “on due consideration”. Said order is not sustainable. [Central Board of Trustees v. Indore Composite (P) Ltd., (2018) 8 SCC 443]

Family and Personal Laws — Maintenance and Financial Provision/Alimony/Palimony — Generally: In this case respondent husband was sent to civil prison for failure to pay entire amount of maintenance as awarded by lower courts. He sought hearing of appeal on merits by appellate court. In view of facts of case, directions issued for speedy disposal of appeal preferred by respondent husband within six weeks. [Shalu Ojha v. Prashant Ojha, (2018) 8 SCC 461]

Medical Law — Eligibility and Right to Practise Medicine Operate/Run Clinics/Nursing Homes/Hospitals, Etc. — Right to run Clinic/Hospital/ Nursing home/Land use: The relief of the poor is one of the essential requirements of the charity and the claim of the hospitals that they were undertaking charity at their own level could not be used as a shield to the performance of charity in an organised way. Further, charity in its widest sense, denoted all the good affections men ought to bear towards each other; in its most restricted and common sense, relief of the poor. Further, members of the medical profession owed a constitutional duty to treat the have-nots and could not refuse to treat a person in dire need of treatment by a particular medicine or by a particular expert merely on the ground that he was not in a position to afford the fee payable. Thus, when the government land had been obtained for charitable purpose of running the hospital, the Government was within its right to impose such an obligation. Being a recipient of government largesse at concessional rates and continuing to enjoy it, the hospitals owed a duty to act in public interest. Further, held, that in case the hospitals wanted to wriggle out and not comply, they had to surrender the land and gorge out the benefit received by virtue of holding the government land. The action of the State could not be said to be unauthorised, illegal or arbitrary in any manner whatsoever and was in furtherance of the very objectives for which the medical profession exists. Hence, Circular/Order dt. 2-2-2012 issued by the Delhi State Governmant and Central Government respectively, regarding free treatment to the weaker sections of the society, upheld. [Union of India v. Moolchand Kharaiti Ram Trust, (2018) 8 SCC 321]

Negotiable Instruments Act, 1881 — Ss. 138 and 139 — Complaint as to dishonour of cheque: Once a cheque has been signed and issued in favour of holder of cheque, there is statutory presumption under S. 139 of NI Act that the cheque is issued in discharge of a legally enforceable debt or liability. However, said presumption is a rebuttable one. Issuer of cheque can rebut that presumption by adducing credible evidence that the cheque was issued for some other purpose like security for loan. [T.P. Murugan v. Bojan, (2018) 8 SCC 469]

Protection of Women from Domestic Violence Act, 2005 — Ss. 12 to 20 — Monetary relief: The proceedings for monetary relief, under 2005 Act are summary in nature. In case of reduction of maintenance amount by appellate court, claim was filed for enhancement of maintenance before Supreme Court while main appeal was still pending before High Court. Parties submitted copious materials to substantiate their claims. Considering peculiarity of case, aggrieved person was relegated to file suit for maintenance under Hindu Adoptions and Maintenance Act or petition under S. 125 CrPC as process involved proof of such documents after cross-examination of parties. [Shalu Ojha v. Prashant Ojha, (2018) 8 SCC 452]

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