Case BriefsSupreme Court

Supreme Court: A Bench comprising of A.K. Sikri, Ashok Bhushan and M.R. Shah, JJ. disposed of a matter concerning execution of conveyance deed and set aside the orders passed by Bombay High Court for want of jurisdiction.

The present proceeding arose out of a suit filed by original plaintiffs– purchasers of flats in the building developed by the defendant Trust. The plaintiffs filed a suit before the trial court for directing the Trust to perform its obligations including execution of conveyance deed of the plot where the subject building was developed. The trial court decreed the suit of plaintiffs. Aggrieved by the same, the Trust approached the High Court. Before the High Court, the plaintiffs filed Note for speaking to Minutes for clarification of certain details on record. The High Court dismissed the appeals and petitions filed by the Trust. However, it is pertinent to note that the impugned order was passed by the High Court below the Note. Aggrieved by orders of the High Court, the Trust preferred the present appeals. The Supreme Court quashed the impugned orders on certain grounds including, inter alia, for want of jurisdiction.

The Court was of the opinion that while passing the order below the Note, the High Court traveled beyond its jurisdiction in regard to the scope of deciding a Note for speaking to Minutes. It explained, “A Note for speaking to Minutes is required to be entertained only for the limited purpose of correcting a typographical error or an error through oversight, which may have crept in while transcribing the original order. Once, the judgment/order is pronounced and if any party to the same wants any rectification of any typographical error and any clerical mistake regarding the date or number, such a party may apply to the concerned Court for correcting such an error in the judgment/order. However, a Note for speaking to the Minutes cannot be considered at par with a review application or in a given case, with an application for clarification/modification of an order. A Note for speaking to the Minutes can never be considered to be an application of such a nature.” It was held that while passing the impugned order below the Note, the High Court virtually modified its original order passed in the first appeal. Such a course was not open to the High Court and therefore the order was liable to be set aside. For such and other reasons, the impugned orders of the High Court were set aside. [Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh v. Brijal Tibrewal,2018 SCC OnLine SC 2816, decided on 14-12-2018]

Case BriefsSupreme Court

Supreme Court: A.M. Sapre, J. speaking for himself and Uday U. Lalit, J. allowed an appeal filed by the State of U.P. against the judgment of a Division Bench of the Allahabad High Court whereby the  appellant’s application under Section 378(3) CrPC was rejected and the judgment of Additional Sessions Judge acquitting the accused (respondents herein) was affirmed.

The respondents were prosecuted and tried for commission of offences punishable under Sections 363, 366, 376 and 120-B IPC. The Additional Sessions Judge, on appreciating the evidence adduced by the prosecution, acquitted the respondents of all the charges. Aggrieved by the acquittal, the appellant filed an application for leave to appeal under Section 378(3) before the High Court which was rejected vide the order impugned. Against this order of the High Court, the appellant preferred the instant appeal.

The Supreme Court referred to State of Maharashtra v. Sujay Mangesh Poyarekar (2008) 9 SCC 475 for looking at the parameters to be kept in mind by the High Court while deciding an application for leave to appeal. The Court perused the order impugned and felt constrained to observe that the High Court grossly erred in passing the same without assigning any reason. It was a clear case of non-application of mind, held the Supreme Court. The order impugned neither sets out the facts nor the submissions of the parties nor the findings nor the reasons as to why the leave to appeal was declined. In such circumstances, the order impugned was set aside and the matter was remanded back to the High Court for deciding the application afresh. The appeal was, thus, allowed. [State of U.P. v. Anil Kumar,2018 SCC OnLine SC 1223, dated 29-08-2018]

Case Briefs

High Court is the body which is intimately familiar with efficiency and quality of officers, fit to be promoted as District Judges.

Delhi High Court: The Division Bench comprising of S. Ravindra Bhat and Sunil Gaur, JJ., addressed a petition of a senior Delhi Higher Judicial Service DHJS Officer in regard to “new criteria for appointment to the position of District and Sessions Judge.”

The grievance that the petitioner placed before the Court was that her Fundamental Right to Equality has been violated due to the adoption of resolution evolving new criteria for appointment to the position of District and Sessions Judge by the Full Court of the Delhi High Court. In accordance to the criteria now there was a requirement of “A” grading in each of the previous years of ACR appraisals.

The contentions submitted by the petitioner were that pursuant to the changes in the earlier adopted 2009 Resolution concerning the appointment to the position of District and Sessions Judge, it had adversely affected the progression prospects of many Additional District Judges and now it had affected the petitioner too. Further, she alleged that she was kept in dark regarding the changes made to the resolution as it was never communicated to her. The whole move of modification would jeopardize the promotion prospects in the Higher Judicial Services and also violate Article 16 of the Constitution of India. The next contention put forward was, that Rule 27 of DHJS Rules is arbitrary and unprincipled and was unsustainable.

The High Court, concluding the matter stated above analysed both the issues placed by the petitioner. Petitioner’s grievance with respect to her lack of knowledge or not being aware was not justified and stating that “her judicial work was not up to the mark on the basis that she did not know that the best performance would result in selection of District Judge” is something not to be heard by the Court as “service in a judicial department is a mission, given the solemn nature of judging.” Therefore, the Court found no substance in any of the contentions of the petitioner and dismissed the petition by laying down a 5 pointer note to be kept in mind by the appraisal evaluation authorities, which was as follows:

  • Judicial officer concerned should be award out of 100 marks maximum.
  • 100 marks shall be done with a break up of –
  • 20% for quality of judgments.
  • 25% may be awarded for the institution/disposal ratio.
  • Maximum 20% may be awarded for the total number of final judgments delivered in the contested matters.
  • Maximum of 10% for timeliness, promptness in delivery of judgments.
  • 25% by the appraising High Court judge/committee on the basis of interaction/inspection.
  • Allowance should be given wherever the judicial officer is assigned burdensome administrative tasks.
  • No officer should be subject to appraisal of any one judge or committee for more than 2 Consecutive years.
  • Instructions to be issued to the appraising judges/committees to forward instances of outstanding or poor judgments for due consideration and input for the ACR appraisal.

The petition was disposed of on the note that the abovestated directions in respect to the formulation of criteria for uniform grading of judicial officers be suitably incorporated.[Sujata Kohli v. High Court of Delhi,2018 SCC OnLine Del 1069, decided on 21-08-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: In a matter arising under Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest (SARFAESI) Act, 2002, a Division Bench comprising of Hemant Gupta, CJ and Atul Sreedharan, J. allowed a writ appeal and set aside the Orders of the learned Single Judge as well as the Debts Recovery Tribunal.

The appellant, a secured creditor, invoked the jurisdiction of the District Magistrate under Section 14 of the SARFAESI Act. Against the order passed by the District Magistrate, the respondents preferred a challenge before the Debts Recovery Tribunal who declined to exercise jurisdiction, holding that an application under Section 17 of the Act is not maintainable before the Tribunal. Respondents filed an appeal before the learned Single Judge who by his impugned judgment, allowed the challenge and set aside the Order of the District Magistrate. Aggrieved by the Order of the Single Judge, the appellants were in appeal before the High Court.

The High Court, after considering the record, held that the learned Single Judge was not right in setting aside the Order of the DM. The Court, relying on its previous judgments, held that an appeal under Section 17 of the Act against an order passed by the DM, is maintainable before the Debts Recovery Tribunal. Thus, the Court set aside the orders of the learned Single Judge as well as the Debts Recovery Tribunal. The matter was accordingly sent back to the Tribunal for adjudication under Section 17 of the SARFAESI Act. [Authorized Officer v.  Prafulla Kumar Maheshwari; 2018 SCC OnLine MP 325; dated 01-05-2018]

Case BriefsHigh Courts

Uttaranchal High Court: While answering the criminal reference in a case falling under the category of ‘rarest of rare cases’, a Division Bench comprising of Rajeev Sharma and Alok Singh, JJ. confirmed the death sentence awarded to the respondent in Sessions trial.

The respondent was convicted under Section 302 IPC for murder and was sentenced to capital punishment. He was further convicted and sentenced under Sections 436, 392 and 411 IPC. The respondent was working as a Mechanic in the motorcycle showroom of one Sanjay Kumar. One Lalita also worked there as a Supervisor. Lalita complained to Sanjay about the appellant, and he was removed from the job. The appellant developed a grudge against them and on a fateful day, the respondent murdered Sanjay by giving him knife blows; chased Lalita and did away with her life; threatened the onlookers; and before escaping, put fire to the showroom. The respondent was tried, convicted and sentenced by the Sessions Court as mentioned above. Learned Additional Sessions Judge made a reference to the High Court for confirmation of death sentence awarded to the respondent.

The High Court considered the record including depositions of the witnesses. The respondent gave a knife blow on the neck of Sanjay and inflicted as many as 10 injuries on Lalita. The medical expert who conducted post-mortem examination deposed that the deceased died due to shock and hemorrhage as a result of excessive bleeding. The Court considered it established that the respondent murdered the deceased and set the showroom ablaze in presence of the witnesses whose testimony could not be assailed. He did not show any repentance, instead threatened the onlookers with dire consequences in case they tried to apprehend him. The Court held that the case fell in the category of ‘rarest of rare’ cases. In the given circumstances, the death sentence awarded to the respondent was confirmed. [State v. Sehzaad Ali, 2018 SCC OnLine Utt 522, dated 01-06-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Vineet Kothari, J., decided a writ petition filed under Articles 226 and 227 of the Constitution, wherein it declined to grant any relief as prayed for by the petitioner holding that it was not a fit case to be adjudicated under extraordinary jurisdiction of the High Court.

The matter involved a land dispute. The respondents submitted that the parties were already engaged in civil suits in trial court regarding the same subject matter, which were still pending. However, the petitioner submitted that the land in question involved in the above said civil suits and that in the instant petition were different.

The High Court perused the record and held that the question whether the land involved in the civil suits and the petition was same or not deserved to be adjudicated by the Civil Court concerned. The Court categorically opined that the matters involving the exercise of extensive fact finding can only be undertaken in properly instituted civil suits and not in the extra-ordinary jurisdiction under Article 226 of the Constitution. Accordingly, no relief as prayed for by the petitioner was granted. [Chikkannachari v. Department of PWD, State of Karnataka, WP No. 46292 of 2016, dated 1.2.2018]

Case BriefsHigh Courts

Delhi High Court: In the order passed by Indermeet Kaur, J., quashed the FIR i.e. FIR No. 0282/2016 registered under Sections 376/366/315/344 of the IPC, 1860 at Sonia Vihar Police Station.

The FIR was quashed on the submission that the FIR registered on 11.08.2016 contained same allegations which were the subject-matter of an earlier FIR i.e. FIR No. 0094/2016 registered at Salon District Police Station, Raebareli under Sections 376/315 of the IPC, which had earlier been quashed on merits by the Bench of Allahabad High Court on 04.07.2016 in Misc. Bench No. 8950 of 2016, as the investigation did not reveal commission of any offence, whereby the Court concluded that the subject-matter of both the FIRs are same, with the only difference being jurisdiction.

Furthermore, the Court held that it is a perfect case where High Court can exercise its inherent powers under Section 482 of CrPC, 1973 and that the entire scenario is nothing but an abuse of the process of court. Accordingly FIR No.0280/2016 stands quashed. [Anup Kumar v. State, W.P. (CRL) 284/2016, decided on 29.01.2018]

Case BriefsSupreme Court

Supreme Court: With the intent to make the exercise of senior designation more objective, fair and transparent so as to give full effect to consideration of merit and ability, standing at the bar and specialized knowledge or exposure in any field of law, the 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ laid down elaborate guidelines for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India.

The Court said:

“The sole yardstick by which we propose to introduce a set of guidelines to govern the matter is the need for maximum objectivity in the process so as to ensure that it is only and only the most deserving and the very best who would be bestowed the honour and dignity. The credentials of every advocate who seeks to be designated as a Senior Advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.”

Committee for Designation of Senior Advocates

All matters relating to designation of Senior Advocates in the Supreme Court and all the High Courts of the country shall be dealt with by a Permanent Committee to be known as “Committee for Designation of Senior Advocates” headed by the Hon’ble the Chief Justice of India and consisting of two senior-most Judges of the Supreme Court of India (or High Court(s), as the case may be) and the learned Attorney General for India (Advocate General of the State in case of a High Court). The above four Members of the Permanent Committee will nominate another Member of the Bar to be the fifth Member of the Permanent Committee.

Permanent Secretariat

The said Committee shall have a permanent Secretariat the composition of which will be decided by the Chief Justice of India or the Chief Justices of the High Courts, as may be, in consultation with the other Members of the Permanent Committee. The Permanent Secretariat will:

  • Compile relevant information regarding the advocate
  • Publish the proposal of designation of a particular Advocate in the official website of the concerned Court inviting the suggestions/views of other stakeholders in the proposed designation
  • Put up the case before the Permanent Committee

Criterion for designation

The reputation, conduct, integrity of the Advocate(s) concerned including his/her participation in pro-bono work; reported judgments in which the concerned Advocate(s) had appeared; the number of such judgments for the last five years, will be considered for designating an advocate as a Senior Advocate.

Process of designation

  • The point based assessment by the Permanent Committee will be made by:
    • examining each case in the light of the data provided by the Secretariat of the Permanent Committee;
    • interviewing the concerned Advocate.
  • All the names that are listed before the Permanent Committee/cleared by the Permanent Committee will go to the Full Court.
  • Voting by secret ballot will not normally be resorted to by the Full Court except when unavoidable. In the event of resort to secret ballot decisions will be carried by a majority of the Judges who have chosen to exercise their preference/choice.

Review of application

All cases that have not been favourably considered by the Full Court may be reviewed/reconsidered after expiry of a period of two years following the manner indicated above as if the proposal is being considered afresh;

Recall of Designation

In the event a Senior Advocate is guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to continue to be worthy of the designation the Full Court may review its decision to designate the concerned person and recall the same.

The present order of the Court is an outcome of the petition filed by Senior Advocate Indira Jaising, who had also served as Additional Solicitor General for the Union of India. In the petition she contended that the present system of designation of Senior Advocates in the Supreme Court of India was flawed and the system needed to be rectified and acceptable parameters laid down. [Indira Jaising v. Supreme Court of India, 2017 SCC OnLine SC 1223, decided on 12.10.2017]

Case BriefsSupreme Court

Supreme Court: Explaining the scope of the expression “the public servant or his administrative superior” under Section 195(1) (a)(i) CrPC, the bench of A.K. Goel and U.U. Lalit, JJ held that the expression cannot exclude High Courts.

Interpreting Section 195(1) (a)(i) CrPC which says that cognizance in respect of offence under sections 172 to 188 IPC cannot be taken except “on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate”, the Court said that that while the bar against cognizance of a specified offence is mandatory, the same has to be understood in the context of the purpose for which such a bar is created. The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person.

It was further held that direction of the High Court is at par with the direction of an administrative superior public servant to file a complaint in writing in terms of the statutory requirement. The protection intended by the Section against a private person filing a frivolous complaint is taken care of when the High Court finds that the matter was required to be gone into in public interest. Such direction cannot be rendered futile by invoking Section 195 to such a situation. Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)(a) cannot be pressed into service. [CBI v. M. Sivamani, 2017 SCC OnLine SC 845, decided on 01.08.2017]

Hot Off The PressNews

Supreme Court: Rejecting the plea of Naveen Jindal seeking permission to challenge the Trail Court’s order in Coal Scam, the 3-judge bench headed by Madan B. Lokur, J reiterated that High Courts cannot entertain the appeals challenging the orders of Special Courts. Such pleas can be entertained only by the Supreme Court.

Congress Leader Naveen Jindal had sought for challenging the Trail Court’s order before the Delhi High Court in the Coal Block allocation case where he was charged with corruption, criminal misconduct, cheating and criminal conspiracy in relation to the coal blocks that were allocated to the Jindal Group of companies.

Refusing to entertain his plea, the Court said that it will not revisit it’s July 25, 2014 order which had said that challenge to any interim order of the special court during pendency of trial in coal scam cases will be heard only by it.

Source: PTI

Case BriefsSupreme Court

Supreme Court: In the PIL relating to lack of basic amenities in the Bandipora District Court affecting the proper functioning of Courts where the issue of regularization of employement by the High Court was in question the Court laid down the following principles:

  • Article 235 enables the High Court to exercise complete administrative control over the district judiciary which extends to all functionaries attached to those courts, including ministerial staff and employees on the establishment.
  • Employment in the High Courts or in the courts subordinate to them constitutes public employment.
  • The date on which the vacancies are likely to occur are foreseeable with a reasonable amount of clarity and precision.
  • While the High Court is an autonomous constitutional authority whose status cannot be undermined, it is equally necessary for it to strictly comply with the rules framed in making recruitments.

Explaining the concept of regularization, the Court said that it is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularisation, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the Scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc Employee the right to seek a writ commanding the State to frame a scheme for regularisation.

The High Court of Jammu & Kashmir had, by order dated 01.12.2015, had observed that over a considerable period of time the state government had not created the required number of posts for the state judiciary as a result of which work has been hampered. According to the High Court, appointment of daily rated workers was necessitated to ensure that judicial work does not suffer. The High Court opined that these workers have been rendering work which should have been assigned to persons appointed on a regular basis against sanctioned posts.

The bench of T.S. Thakur, CJ and Dr. D.Y. Chandrachud and L. Nageswara Rao, JJ, noticing that the direction for regularization was issued by the High Court without considering the relevant constitutional and legal principles, said that it is unfortunate that the state government has allowed the requirements of the state judiciary to be neglected over such a long period of time. The need to facilitate the proper functioning of the High Court and the district judiciary is a constitutional necessity which imposes a non-negotiable obligation on the state government to create an adequate number of posts and to provide sufficient infrastructure. The state government is to blame for the unfortunate situation which has resulted in a large number of persons being recruited on a daily wage basis. [State of Jammu & Kashmir v. District Bar Association, Bandipora, 2016 SCC OnLine SC 1435, decided on 08.12.2016]