2020 SCC Vol. 10 Part 3

Administrative Law — Natural Justice — Audi Alteram Partem — Right to Hearing — Cross-examination — Right to — When available: As there was denial of opportunity to appellant to cross-examine witnesses relied upon by assessing officer, matter remanded to first appellate authority to determine the matter afresh in accordance with law by giving fair opportunity to both sides to present their cases. [ICDS Ltd. v. CIT, (2020) 10 SCC 529]

Constitution of India — Art. 32 — Suo motu writ petition: In this case, the issue was revealed in newspaper reports and online news portals relating to an LLM student, A at S.S. Law College from Shahjahanpur, U.P., having gone missing from 24-8-2019. A allegedly levelled certain allegations against persons running the institutions in said Law College. She was located in Rajasthan and as directed, produced before the Court on 30-8-2019. Court spoke to her in camera and after hearing her statement and their grievances against the institution and also the management, petition disposed of with requisite directions including constitution of SIT headed by the IGP to enquire into the matter, and monitoring of the investigations by the High Court. [Missing LLM Student at Swami Shukdevanand Law College, In re, (2020) 10 SCC 515]

Constitution of India — Arts. 19(1)(a), 19(1)(b), 19(2) and 19(3) — Right to protest against Government action, whether legislative or executive action — Scope of: Citizens have right under Arts. 19(1)(a) & (b) to assemble peacefully and protest against action or inaction of State, including a law which has been challenged before the Court but this right needs to be balanced with other contrasting fundamental rights and is subject to reasonable restrictions as indicated in Arts. 19(2) and (3). Expression of dissension or protest must be at a place designated by administration. Holding meeting by blocking public place or road in protest against particular legislation which had also been challenged in Court, for indefinite period without permission of authorities, causing serious inconvenience to commuters or fuelling highly polarised movement elsewhere by using digital infrastructure and social media channels, not democratic way of expressing protest. Administration must take action to clear encroachment or obstruction created by such protestors. [Amit Sahni (Shaheen Bagh, In re) v. State, (2020) 10 SCC 439]

Constitution of India — Sch. VII List III Entries 17-A and 17-B, Arts. 21, 47, 48-A and 51-A(g) — T.N. Government Noti. GO(Ms) No. 125, dt. 31-8-2010 notifying “elephant corridor” and in view thereof direction to resort owners and other private landowners to vacate and hand over vacant possession of the lands falling within the notified elephant corridor — Validity: State Government is empowered to take measures to protect forests and wildlife falling within its territory in light of Entries 17-A “Forest” and 17-B “Protection of wild animals and birds” in the Concurrent List of the Constitution and the power of the State Government under the Wildlife Act to notify sanctuaries and other protected areas — In regard to private forest land, the State Government is empowered to protect the habitats situated on the land in dispute by notifying an elephant corridor thereupon. Arts. 21, 47, 48-A and 51-A(g) give a clear mandate to the State to protect and improve the environment and to safeguard the forests and wildlife of the country. The “precautionary principle” which is a part of the law of the land makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation. [Hospitality Assn. of Mudumalai v. In Defence of Environment & Animals, (2020) 10 SCC 589]

Criminal Law — Penal Code, 1860 — S. 34 — Common intention: Foundation for conviction on basis of common intention, how inferred, discussed. Principles summarised regarding vicarious/constructive liability. [Subed Ali v. State of Assam, (2020) 10 SCC 517]

Criminal Law — Penal Code, 1860 — Ss. 304 Pt. II and 324 [S. 300 Exception 4]: In this case of culpable homicide not amounting to murder along with voluntarily causing hurt by dangerous weapon, High Court modified conviction of appellant from S. 302 to that under S. 304 Pt. II and reduced sentence of life imprisonment to 5 yrs’ RI along with fine while confirming conviction under S. 324 and sentence of 2 yrs’ RI under. Both sentences were ordered to run concurrently. There was free fight and appellant also sustained injuries and had even attempted to make complaint, was taken into account by High Court. Hence, modification of conviction and sentence imposed on appellant by High Court, held proper. [Ilangovan v. State of T.N., (2020) 10 SCC 533]

Criminal Procedure Code, 1973 — S. 164 r/w Ss. 173, 190, 204, 207 and 208 — Copy of statement recorded under S. 164 — Right of accused to receive: Right to receive a copy of such statement will arise only after cognizance is taken, at the stage contemplated by Ss. 207 and 208 and not before. Thus, the filing of the charge-sheet by itself, would not entitle an accused to copies of any of the relevant documents including statement under S. 164 CrPC. [A v. State of U.P., (2020) 10 SCC 505]

Criminal Procedure Code, 1973 — S. 389: In this case prayer for suspension of sentence/grant of bail, during pendency of appeal, by co-conspirator to kidnapping was rejected by High Court, taking overall view of matter, bail granted. [Mohan v. State of M.P., (2020) 10 SCC 531]

Criminal Procedure Code, 1973 — S. 439 — Bail: Application for Bail dismissed by High Court, without hearing it on merits, not proper. [G. Selvakumar v. State of T.N., (2020) 10 SCC 494]

Excise — Valuation — Transaction value : In this case goods were sold to distributors as physician samples charged at lesser price by assessee. Trade packs for sale to ultimate consumers sold to distributors were charged at higher price by assessee. While determining that for assessment of value in regard to sale of physician samples to distributors, whether S. 4(1)(a) or S. 4(1)(b), was applicable, the Supreme Court held that the transaction in question was between assessee and distributors. Price was charged by assessee from distributors therefore. What ultimately distributors did with these goods is extraneous and could not be relevant consideration to determine valuation of excisable goods in transaction between assessee and its distributors. As assessee charged a price from distributors, it is S. 4(1)(a) that would apply — No allegation in the show-cause notice that the price at which the goods were sold by the assessee to the distributors was not sole consideration. Thus show-cause notice raising demand in terms of S. 4(1)(b) is clearly founded on the wrong reason, and cannot be sustained. Thus, 1975 Rules would also not apply for valuation. [CCE v. Sun Pharmaceuticals Industries Ltd.,(2020) 10 SCC 583]

Factories Act, 1948 — Ss. 5, 51, 54, 55, 56 and 59: In this case, Notifications dt. 17-4-2020 and 20-7-2020 was issued under S. 5 exempting registered factories from provisions relating to humane working conditions and adequate compensation for overtime, etc. in wake of outbreak of COVID-19 and consequent nationwide lockdown, on ground of financial stringency faced by industrial employers. While determining the validity of the Notification, the Supreme Court held that though respondent State aimed to ameliorate financial exigencies caused due to pandemic and subsequent lockdown, but financial losses cannot be offset on weary shoulders of labouring worker, who provides backbone of economy. S. 5 could not have been invoked to issue blanket notification that exempted all factories from complying with humane working conditions and adequate compensation for overtime as a response to pandemic that did not result in “internal disturbance” of nature that posed “grave emergency” whereby security of India was threatened so as to constitute “public emergency” within meaning of S. 5. Hence, impugned notifications were quashed. Further, in order to do complete justice, in exercise of powers under Art. 142 of the Constitution, it was directed that all eligible workers who had worked since issuance of notifications would be entitled to overtime wages. [Gujarat Mazdoor Sabha v. State of Gujarat, (2020) 10 SCC 459]

Insolvency and Bankruptcy Code, 2016 — Ss. 238-A and 7: Application under S. 7 is not maintainable, when debt is barred by limitation. Vesting of onus to prima facie show the existence of a legally recoverable debt i.e. that the debt is not barred by limitation is on applicant. [Radha Exports (India) (P) Ltd. v. K.P. Jayaram, (2020) 10 SCC 538]

Juvenile Justice (Care and Protection of Children) Act, 2000 — Ss. 7-A, 20 and 64 (as amended by Amendment Act 33 of 2006) — Juvenility — Determination of: Juvenile is not entitled to benefit of being a juvenile on the date of the offence under the 1986 Act and who had turned an adult when the 2000 Act was enforced. If juvenile’s age was less than 18 yrs on the date of commission of offence, he is entitled to the benefit of 2000 Act, regardless of whether he had turned an adult before or after commencement of the 2000 Act. Furthermore, not only can benefit of S. 2000 Act be sought at any Stage in respect of pending proceedings, but after insertion of S. 7-A, claim of juvenility may be raised before “any court” “at any stage” i.e. even after the final disposal of the case. [Satya Deo v. State of U.P., (2020) 10 SCC 555]

Protection of Children from Sexual Offences Act, 2012 — S. 7 r/w S. 8 — Conviction on sole testimony of victim — Permissibility of: Where testimony of victim is found reliable and trustworthy, reiterated, conviction on basis of her sole testimony is permissible. [Ganesan v. State, (2020) 10 SCC 573]

Service Law — Appointment — Compassionate Appointment — Entitlement to: Preconditions and criteria specified in applicable policy/rules must be strictly satisfied therefore. [State of M.P. v. Amit Shrivas, (2020) 10 SCC 496]

Service Law — Judiciary — Recruitment process — Recruitment of judicial officers in State of W.B. for recruitment year 2020: In this case, schedule for filling up vacancies was fixed by Supreme Court in Malik Mazhar Sultan (3), (2008) 17 SCC 703 which was to commence with notification of vacancies by 31st March every year and culminate with issuance of appointment letters by 30th September. As notification of vacancies for current year 2020 was not done because of outbreak of pandemic and announcement of lockdown by 24-3-2020, hence, schedule revised. [Malik Mazhar Sultan v. U.P. Public Service Commission, (2020) 10 SCC 524]

Service Law — Recruitment Process — Panel/Select list/Reserve list/Waiting list/Merit list/Rank list — Erroneous answer-key — Recruitment in terms of revised list: In this case, for recruitment to post of Constable (Executive)-Male, names of respondents U and S (OBC candidates) appearred in initial result declared on 17-7- 2015 but not in revised result dt. 22-2-2016 which was occasioned due to errors in answer-key. The Supreme Court noted that mere inclusion of candidate in selection list does not confer vested right of appointment upon him. Besides, process of revising results was carried out before completion of recruitment process for candidates selected pursuant to result dt. 17-7-2015. High Court erred in issuing mandamus to appellants to appoint respondents despite failing to obtain cut-off marks for OBC category in revised result. Further, the fact that there were only two candidates before Supreme Court, would not entitle them to direction contrary to law since they had no vested right to appointment and there were 228 candidates ranked above Respondent U and 265 candidates ranked above Respondent S. Moreover, fact that respondent U had tendered his resignation on 16-8-2015 which was accepted on 25-8-2015 inconsequential since he tendered his resignation without justification before completion of recruitment process and offer of appointment made to him. Besides, it was open to him to seek reenlistment in his erstwhile organisation at material time but he chose not to do so. Failure by authorities to notice initially norm of allotting bonus mark based on height and prepare correct answer-key resulting in litigation across country before tribunals/High Courts and ultimately before Supreme Court, strongly deprecated. [State v. Umesh Kumar, (2020) 10 SCC 448]