31 Important Supreme Court Judgments Reported in 2019 (7) SCALE

2019 (7) SCALE 314 | Pre­conception and Pre­natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - The instant writ petition has been filed by the Federation of Obstetrics and Gynaecological Societies of India (FOGSI) highlighting the issues and problems affecting the practice of obstetricians and gynaecologists across the country under the Act and challenging the constitutional validity of Sections 23(1) and 23(2) of the Act and seeking direction in the nature of certiorari / mandamus for decriminalising anomalies in paperwork/record keeping/clerical errors in regard of the provisions of the Act for being violative of Articles 14, 19(1)(g) and 21 of the Constitution of India. The Society is the apex body of obstetricians and gynaecologists of the country and is concerned for the welfare of its members. Arun Mishra & Navin Sinha, JJ. Federation of Obstetrics and Gynecological Societies of India (FOGSI) Secretary General v. Union of India, W.P. (C) No. 129 of 2017 03-05-2019


2019 (7) SCALE 297 | Electricity Regulatory Commission Act, 1998 - S. 29 (3) - Determination of Tariff by State Commission. Arun Mishra & S. Abdul Nazeer, JJ. Tata Power Company Ltd. v. Adani Electricity Mumbai Ltd., C.A. No. 415 of 2007 02-05-2019

2019 (7) SCALE 290 | Special Leave Petition - Mere summary disposal of a Special Leave Petition does not conclude the issue on merits. U.U. Lalit & Indu Malhotra, JJ. State of Jammu and Kashmir v. Farid Ahmad Tak, C.A. No. 4563 of 2019 02-05-2019

2019 (7) SCALE 286 | Drugs and Cosmetics Act, 1961 - S. 3(f) - The term “preference” mentioned in the advertisement cannot be interpreted to mean that merely because a candidate may have had the requisite experience of testing in a research and development laboratory he/she possessed the essential eligibility and had a preferential right to be considered for appointment. Arun Mishra & Navin Sinha, JJ. Maharashtra Public Service Commission v. Sandeep Shriram Warade, JT 2019 (5) SC 110 C.A. No. 4597 of 2019 03-05-2019

2019 (7) SCALE 270 | Land Revenue Act, 1964 (Karnataka) - S. 197 - Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (Karnataka) - S. 4 - Land Grant Rules, 1969 (Karnataka) - R. 9 (i) - Prohibition of transfer of granted lands - Conditions of Grant. Sanjay Kishan Kaul & Indira Banerjee, JJ. Satyan v. Deputy Commissioner, C.A. No. 2976 of 2019 30-04-2019

2019 (7) SCALE 264 | Maintenance of Internal Security Act (MISA), 1971 - S. 3(2) - Defence of India Act, 1971 - S. 6(6)(c) - Internal Security (Amendment) Ordinance, 1974 - S. 2(1)(c)(iii) - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974 - Ss. 10, 10A & 12A - Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act (SAFEMA), 1976 - Maximum period of detention - Extension of period of detention - Special provisions for dealing with emergency - Application. U.U. Lalit & Hemant Gupta, JJ. Narender Kumar v. Union of India, Crl.A. No. 1492 of 2009 08-04-2019

2019 (7) SCALE 254 | Civil Procedure Code, 1908 - S. 100 - Second Appeal - While passing the impugned Judgment and Order, the High Court has re­appreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on reappreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re­appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC. L. Nageswara Rao & M.R. Shah, JJ. S. Subramanian v. S. Ramasamy, C.A. No. 4536 - 4537 of 2019 01-05-2019

2019 (7) SCALE 235 | Municipalities and Panchayats - The conundrum in this appeal is about the inclusion or exclusion of the Member of the House of Parliament representing the Union Territory of Andaman and Nicobar Islands, who is also an ex­officio member of the Panchayat Samiti, for reckoning the quorum of a special meeting regarding motion of no confidence against the Pramukh of the Little Andaman Panchayat Samiti and also whether he/she can exercise his/her vote on the ‘No Confidence Motion’ within the meaning of the provisions of Andaman and Nicobar Islands (Panchayats) Regulation, 1994 and the Andaman and Nicobar Islands (Panchayats Administration Rules) 1997. A.M. Khanwilkar & Ajay Rastogi, JJ. Seema Sarkar v. Executive Officer, C.A. No. 4547 of 2019 01-05-2019

2019 (7) SCALE 223 | Association - the right to form an Association included the right to its continuance and any law altering the composition of the Association compulsorily will be a breach of the right to form the Association. A.M. Khanwilkar & Ajay Rastogi, JJ. Maharashtra Archery Association v. Rahul Mehra, S.L.P. (C) No. 29577 of 2017 01-05-2019

2019 (7) SCALE 215 | CBI Investigation - the public order (Entry 1) and the police (Entry 2) is a State subject falling in List II of the VII Schedule of the Constitution. It is a primary responsibility of the investigating agency of the State Police to investigate all offences which are committed within its jurisdiction. The investigations can be entrusted to Central Bureau of Investigation on satisfaction of the conditions as specified therein only in exceptional circumstances. Such power cannot and should not be exercised in a routine manner without examining the complexities, nature of offence and some time the tardy progress in the investigations involving high officials of the State investigating agency itself. D.Y. Chandrachud & Hemant Gupta, JJ. Shree Shree Ram Janki Ji Asthan Tapovan Mandir v. The State of Jharkhand, JT 2019 (5) SC 42 C.A. No. 4003 of 2019 01-05-2019

2019 (7) SCALE 203 | Income Tax Act, 1961 - S. 260­A - Substantial Question(s) of Law - the High Court did not frame any question as required under Section 260­A (3) of the Act - The appeals are remanded to the High Court for hearing afresh only after framing appropriate substantial question(s) of law as required under Section 260­ A(3) of the Act. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Ryatar Sahakari Sakkarre Karkhane Niyamit v. Asst. Commissioner of Income Tax C 1, JT 2019 (5) SC 9 C.A. No. 4515 - 4524 of 2019 01-05-2019

2019 (7) SCALE 152 | Penal Code, 1860 - S. 498A - There is nothing in Section 498A, which may indicate that when a woman is subjected to cruelty, a complaint has to be filed necessarily by the women so subjected. A perusal of Section 498A, indicates that the provision does not contemplate that complaint for offence under Section 498A should be filed only by women, who is subjected to cruelty by husband or his relative. Complaint filed by the father cannot be said to be not maintainable on this ground. Ashok Bhushan & K.M. Joseph, JJ. Rashmi Chopra v. State of Uttar Pradesh, Crl.A. No. 594 of 2019 30-04-2019

2019 (7) SCALE 168 | Criminal Procedure Code, 1973 - S. 319 - Penal Code, 1860 - Ss. 148, 149, 323, 324, 325, 302, 307 & 506 - the persons against whom no charge­sheet is filed can be summoned to face the trial. L. Nageswara Rao & M.R. Shah, JJ. Rajesh v. State of Haryana, Crl.A. No. 813 of 2019 01-05-2019

2019 (7) SCALE 143 | Res Judicata and Precedent - Difference between - Res judicata operates in personam i.e. the matter in issue between the same parties in the former litigation, while law of precedent operates in rem i.e. the law once settled is binding on all under the jurisdiction of the High Court and the Supreme Court. Res judicata binds the parties to the proceedings for the reason that there should be an end to the litigation and therefore, subsequent proceeding inter-se parties to the litigation is barred. Therefore, law of res judicata concerns the same matter, while law of precedent concerns application of law in a similar issue. In res judicata, the correctness of the decision is normally immaterial and it does not matter whether the previous decision was right or wrong, unless the erroneous determination relates to the jurisdictional matter of that body. L. Nageswara Rao & Sanjiv Khanna, JJ. State of Rajasthan v. Nemi Chand Mahela, C.A. No. 3873 of 2010 30-04-2019

2019 (7) SCALE 136 | Insolvency and Bankruptcy Code, 2016 - The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - Rule 6 - Whether a trade union could be said to be an operational creditor? Rohinton Fali Nariman & Vineet Saran, JJ. JK Jute Mill Mazdoor Morcha v. Juggilal Kamlapat Jute Mills Company Ltd. Thr. Its DirectorJT 2019 (5) SC 1 C.A. No. 20978 of 2017 30-04-2019

2019 (7) SCALE 132 | Penal Code, 1860 - Section 302 - Appellant threw the burning stove on the deceased due to which clothes of deceased caught fire and serious burn injuries were caused - When a person throws a burning stove on a person there is knowledge that the act is likely to cause death - the appellant can be said to have committed offence under Section 304 Part II IPC. Ashok Bhushan & K.M. Joseph, JJ. Kalabai v. State of Madhya Pradesh, JT 2019 (5) SC 11 Crl.A. No. 763 of 2019 30-04-2019

2019 (7) SCALE 123 | Criminal Procedure Code, 1973 – Ss. 197 & 482 - Penal Code, 1860 - Sections 201, 409, 419, 420, 467, 468, 471 and 120B - Sanction - Whether a manager of nationalized bank can claim benefit of Section 197 Cr.P.C. Ashok Bhushan & K.M. Joseph, JJ. S.K. Miglani v. State NCT of Delhi, Crl.A. No. 744 of 2019 30-04-2019

2019 (7) SCALE 118 | Penal Code, 1860 - Section 302 - Murder - Dying Declaration - There cannot be any dispute that a dying declaration can be the sole basis for convicting the accused. However, such a dying declaration should be trustworthy, voluntary, blemishless and reliable. In case the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. Insistence for certification by the doctor is only a rule of prudence, to be applied based on the facts and circumstances of the case. The real test is as to whether the dying declaration is truthful and voluntary. It is often said that man will not meet his maker with a lie in his mouth. However, since the declarant who makes a dying declaration cannot be subjected to cross­examination, in order for the dying declaration to be the sole basis for conviction, it should be of such a nature that it inspires the full confidence of the court. N.V. Ramana, Mohan M. Shantanagoudar & S. Abdul Nazeer, JJJ. Poonam Bai v. State of Chhattisgarh, Crl.A. No. 903 of 2018 30-04-2019

2019 (7) SCALE 50 | Companies Act, 1956 - S. 396 - Power of Central Government to provide for amalgamation of companies in public interest - Applicability and construction of. Rohinton Fali Nariman & Vineet Saran, JJ. 63 Moons Technologies Ltd. (formerly Known As Financial Technologies India Ltd. v. Union of India, C.A. No. 4476 of 2019 30-04-2019

2019 (7) SCALE 39 | Minimum Wages Act, 1948 - The prohibition of segregation of wages into components in the form of allowances in the Notification is impermissible - The security inspector/ security officer/ security supervisor cannot be included in the Notification - Trainees who are employed without payment of any reward cannot be covered by the Notification - Categorization of unskilled employees as semiskilled and semi-skilled as skilled on the basis of their experience is ultra vires - Fixing the training period for one year is beyond the jurisdiction of the Government. L. Nageswara Rao & M.R. Shah, JJ. Hindustan Sanitaryware and Industries Ltd. v. State of Haryana, C.A. No. 2539 of 2010 29-04-2019

2019 (7) SCALE 29 | Succession Act, 1925 - S. 228 - Limitation Act, 1963 - Art. 137 - Whether Article 137 of the Limitation Act shall be applicable for application for grant of probate or letters of administration - Whether the application under Section 228 of the Indian Succession Act shall be barred by the period of limitation prescribed under Article 137 of the Limitation Act - Whether the period of limitation for application under Section 228 of the Act would start to run from the date of grant of probate by a court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India - Discussed. L. Nageswara Rao & M.R. Shah, JJ. Sameer Kapoor v. State through Sub Division Magistrate South, C.A. No. 10482 of 2013 29-04-2019

2019 (7) SCALE 23 | Constitution of India - Arts. 32 & 226 - Institute of Banking Personnel Selection is not amenable to the Writ Jurisdiction. L. Nageswara Rao & M.R. Shah, JJ. Rajbir Surajbhan Singh v. Chairman, Institute of Banking Personnel Selection, Mumbai, JT 2019 (5) SC 35 C.A. No. 4455 of 2019 29-04-2019

2019 (7) SCALE 20 | Penal Code, 1860 - Section 302 - Murder - Quarrel between the appellant-father and his daughter-deceased - the appellant-accused threw chimney lamp on the deceased causing her burn injuries - She sustained injuries on her face, chest and stomach and parts below the legs. The deceased succumbed to injuries seven days after the occurrence. The entire occurrence was in a spur of moment. There was quarrel between the father and daughter as to where the bulb is to be put on. In the sudden quarrel and in spur of the moment, the appellant threw the chimney lamp on his daughter. The occurrence was sudden and there was no premeditation. The chimney lamp was burning there which the appellant had picked up and thrown on the deceased. Since the occurrence was in sudden quarrel and there was no premeditation, the act of the accused would fall under Exception 4 to Section 300. The conviction of the appellant-accused under Section 302 IPC is modified as the one under Section 304 Part-II IPC. R. Banumathi & R. Subhash Reddy, JJ. Govind Singh v. State of Chhattisgarh, Crl.A. No. 770 of 2019 29-04-2019

2019 (7) SCALE 13 | Criminal Procedure, 1973 - Section 389 - Suspension of execution of sentence during the pendency of appeal - Legal Principles. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. N. Ramamurthy v. State By Central Bureau of Investigation, JT 2019 (5) SC 88 Crl.A. No. 751 of 2019 26-04-2019

2019 (7) SCALE 6 | Civil Procedure Code, 1908 - O. 22 R. 4 (3) & O. 22 R. 9 - Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed within the strict parameters of law. A.M. Khanwilkar & Ajay Rastogi, JJ. Goli Vijayalakshmi v. Yendru Sathiraju, JT 2019 (5) SC 60 C.A. No. 8109 of 2010 26-04-2019

2019 (7) SCALE 1 | Adverse Possession - What is “adverse possession” - Whom the burden of proof lies - What should be the approach of the Courts while dealing with such plea - Mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner. Abhay Manohar Sapre & Dinesh Maheshwari, JJ. Mallikarjunaiah v. Nanjaiah, JT 2019 (5) SC 56 C.A. No. 7768 of 2011 26-04-2019

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