2019 SCC Vol. 7 August 21, 2019 Part 3

Assam Rifles Act, 2006 (47 of 2006) — Ss. 2(e), (h) & (r), 55, 56, 49 and 139 r/w Ss. 3, 4, 7, 25 and 28 of Prevention of Corruption Act, 1988: General Assam Rifles Court (GARC), held, has jurisdiction to try offences under Prevention of Corruption Act, against members of Assam Rifles. S. 4 of PC Act is not irreconcilable with S. 55 of 2006 Act to such extent that they cannot stand together. [Union of India v. Ranjit Kumar Saha, (2019) 7 SCC 505]

Civil Procedure Code, 1908 — Or. 9 — Dismissal for default: Ordinarily litigation is based on adjudication on merits of contentions of parties. Litigation should not be terminated by default, either of plaintiff or defendant. Cause of justice requires that as far as possible, adjudication be done on merits. [Robin Thapa v. Rohit Dora, (2019) 7 SCC 359]

 Constitution of India — Art. 190(3)(b) or Sch. X Para 2 r/w Art. 361-B and Arts. 164, 191, 212 and 208 — Conflict of Constitutional rights — Constitutional balance — Interim order: In this case, as there was one day to go for no-confidence motion, it was held that at this stage, resignation of 15 MLAs concerned of Karnataka Assembly cannot be first accepted or their disqualification under Sch. X be ordered, as it is not desirable to adjudicate said issue. As an interim measure, Speaker directed to use discretion to decide request for resignation of 15 MLAs concerned under Art. 190 r/w R. 202 of Rules of Procedure and Conduct of Business of Karnataka Legislative Assembly. Discretion given to decide said issue within such time-frame as Speaker considered necessary. During said period said 15 members cannot be compelled by Speaker to participate in proceedings of House. Said 15 MLAs concerned can either take part or opt to remain out of proceedings of House. [Pratap Gouda Patil v. State of Karnataka, (2019) 7 SCC 463]

Constitution of India — Art. 226 — Alternative remedy/Exhaustion of remedies: Validity of dismissal of writ petition on ground of existence of arbitration clause, affirmed. [Nirmal Software Services (P) Ltd. v. Dr Babasaheb Ambedkar Marathwada University, (2019) 7 SCC 356]

Constitution of India — Arts. 129 and 32 — Contempt jurisdiction — Scope of interference — CBI investigation — Saradha Chit Fund Scam: In case of contempt jurisdiction with particular reference to non-cooperation of State Police official (Commissioner of Police) with CBI, both parties ad idem that Supreme Court in contempt jurisdiction while examining events of 3-2-2019 cannot go into issues that arise for consideration i.e. in contempt proceedings Court could not determine whether or not police official concerned should be arrested by CBI for custodial interrogation, hence, interim protection granted to State Police official concerned, vacated and certain consequential clarifications issued. [Subrata Chattoraj v. Union of India, (2019) 7 SCC 393]

Constitution of India — Arts. 226 and 12 — Maintainability of writ petition: Writ petition challenging termination order passed by Managing Committee of private school, not maintainable since Managing Committee of private school is not “State” within meaning of Art. 12. [Trigun Chand Thakur v. State of Bihar, (2019) 7 SCC 513]

Constitution of India — Arts. 33 and 19(1)(g) & (6) — Restrictions on member of Armed Forces to leave service at will: In this case appellant Airman in IAF in breach of provisions contained in AFO 14 of 2008 applying for civilian post, participating in written test and appearing for interview without intimation or approval. Thus, held, appellant failed to comply with his obligations both in terms of his engagement as enrolled member of Force and requirements to be fulfilled in terms of AFO 14 of 2008. Further held, submission that appellant had unqualified right under Art. 19(1)(g) of the Constitution to leave service of AF at will, liable to be rejected since member of IAF does not have such unqualified right, which would seriously impinge upon manning levels and operational preparedness of Armed Forces. [Amit Kumar Roy v. Union of India, (2019) 7 SCC 369]

Consumer Protection — Services — Medical practitioners/services — Medical negligence: Courts not to defer too readily to expert opinion and must duly apply their mind to the reasonableness of the treatment/care given to the patient and/or approach adopted in the circumstances of each case, otherwise medical standards would obviously decline. Director of Hospital, when is not the treating doctor or the referring doctor, not personally liable, even when negligence is confirmed against Hospital. Standard of care which is expected of a medical professional is the treatment which is expected of one with a reasonable degree of skill and knowledge and a medical practitioner would be liable only where the conduct falls below the standards of a reasonably competent practitioner in the field. [Arun Kumar Manglik v. Chirayu Health & Medicare (P) Ltd., (2019) 7 SCC 401]

Contract Labour (Regulation and Abolition) Act, 1970 — Ss. 10(1), 7, 12, 23, 24 and 25 — Violation of prohibition notification issued under S. 10(1) — Effect: Principal employer is under no obligation to absorb contract labour on issuance of prohibition notification in absence of any such stipulation in CLRA Act providing for automatic absorption. [SAIL v. Ispat Khadan Janta Mazdoor Union, (2019) 7 SCC 440]

Criminal Procedure Code, 1973 — S. 239 — Discharge — Scope — Matters that may be considered: Entering into questions of evidentiary value of material adduced by prosecution at stage of, not permissible. [State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515]

Criminal Procedure Code, 1973 — S. 482 — Quashment: In this case as there were mala fides or animus of complainant and allegations were also there of illegal racket in State whereby some unscrupulous lawyers in connivance with court officials were procuring arrest warrants against alleged accused without following procedure prescribed by law and without verifying whether there was any truth in complaint, appellant permitted to file appropriate proceedings for quashment, on these grounds of. [Manohar M. Galani v. State of Gujarat, (2019) 7 SCC 527]

Criminal Procedure Code, 1973 — Ss. 378 and 386 — Appeal against acquittal: Opportunity of hearing/Proper representation a must, even if by appointment of counsel/Amicus Curiae by court. In this case, respondent complainant filed the complaint under S. 138, NI Act and Trial court acquitted appellant-accused. In the appeal preferred by respondent before High Court, there was no representation for appellant-accused. Upon hearing the respondent complainant, High Court set aside the judgment of trial court and convicted appellant-accused under S. 138, NI Act, held to be improper. [Christopher Raj v. K. Vijayakumar, (2019) 7 SCC 398]

Family and Personal Laws — Guardians and Wards — Custody of Child/Minor — Considerations for Appointment of Guardian/Welfare of Child — Paramount consideration is always of welfare of child: Provisions of Guardians and Wards Act, 1890 govern rights of parents or guardians, however they do not bar courts exercising parens patriae jurisdiction from determining rights of child considering its overall development. Purpose and object of Guardians and Wards Act, 1890 is not mere physical custody of minor but due protection of ward’s health, maintenance and education.  Power and duty of court under this Act is welfare of minor. Word “welfare” must be taken in its widest sense. Apart from physical well-being, moral and ethical welfare of child also weigh with court. Though provisions of special statute, such as the Guardians and Wards Act, 1890, governing rights of parents or guardians may be taken into consideration, there is nothing which can stand in way of court exercising its parens patriae jurisdiction. No hard-and-fixed formula can be found out which can be applied in each and every case. Each case has to be examined in its own facts. Every child has right to proper health and education. It is primary duty of parents to ensure that child gets proper education. Courts exercising parens patriae jurisdiction can decide such issues in interest of minor. [Sheoli Hati v. Somnath Das, (2019) 7 SCC 490]

Government Grants, Largesse, Public Property and Public Premises — Illegal/Unauthorised Occupation/Encroachment of Government Land and Eviction/Dispossession therefrom and Demolition — Rent recovery/Mesne profit: In case of non-agreement of tenant with proposal of Estate Officer, remand order for giving opportunity of hearing before Estate Officer, affirmed with condition that tenant should pay reasonable amount of damages for delaying matter before Estate Officer. Monthly instalments of arrears and damages specified to be paid till disposal of matter by Estate Officer. On failure to deposit any of said instalments, Estate Officer directed to pass eviction order and no defence would be available to tenant. On deposit of first instalment of arrears, water supply to be resumed, which allegedly was disconnected. [Bengal Chemicals & Pharmaceuticals Ltd. v. Ajit Nain, (2019) 7 SCC 363]

M.P. Ceiling on Agricultural Holdings Act, 1960 (20 of 1960) — Ss. 46, 7, 11, 41 and 42 — Order passed by competent authority declaring surplus land: Challenge to order passed by competent authority declaring surplus land, by instituting a civil suit, is not maintainable in view of bar of jurisdiction of civil court in such matter under S. 46, M.P. Ceiling on Agricultural Holdings Act, 1960. Order of competent authority is subject to appeal and further revision as provided under the 1960 Act. [State of M.P. v. Dungaji, (2019) 7 SCC 465]

Penal Code, 1860 — S. 498-A and Expln. thereto — Conviction under — Ingredients for: Conviction for an offence under S. 498-A IPC, held, can be for wilful conduct which is likely to drive a woman to commit suicide OR for dowry demand. In this case there was conviction of husband for cruelty under S. 498-A for having extra-marital relationship which allegedly drove wife to commit suicide, when neither dowry demand nor mental nor physical cruelty on the part of husband proved. Appellant husband already stood acquitted under S. 306. It was held by the Supreme Court that in such circumstances conviction under S. 498-A cannot be sustained as it would not attract either limb of definition of “cruelty” under S. 498-A Expln. [Wasim v. State (NCT of Delhi), (2019) 7 SCC 435]

Penal Code, 1860 — Ss. 302 and 392 r/w S. 34 — Robbery and murder: In this case as there was circumstantial evidence of last seen evidence, recovery of stolen articles, non-explanation of incriminating evidence and failure to conduct TIP was held inconsequential, conviction of accused, confirmed. [Ramesh Dasu Chauhan v. State of Maharashtra, (2019) 7 SCC 476]

Penal Code, 1860 — Ss. 302/34 or Ss. 304 Pt. II/34 — Murder or culpable homicide: In this case of sudden fight, there was absence of premeditation. Evidence of injured witness was reliable, believable and inspire implicit confidence as well as was corroborated, hence, concurrent conviction under Ss. 304 Pt. II/34 confirmed. [Pratap Singh v. State of Uttarakhand, (2019) 7 SCC 424]

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 — S. 28: In this case as there was appropriate authority for conducting inspection as to whether provisions of Act and Rules were being complied with, proceedings were restored. [State of Orissa v. Mamata Sahoo, (2019) 7 SCC 486]

Service Law — Reservation/Concession/Exemption/Relaxation and Affirmative Action — Migration of Category: Reserved category candidate availing benefit of age relaxation in selection process cannot be accommodated in or migrated to general category. [Niravkumar Dilipbhai Makwana v. Gujarat Public Service Commission, (2019) 7 SCC 383]

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