Fortnightly Newsletter- May 16, 2018


Page Contents

SUPREME COURT DECISIONS

SC on Formula for Payment of Dearness Relief to Pensioners

In the case the Supreme Court upheld the classification of Pre November, 2002 and Post November 2002 Bank Retirees for payment of Dearness Relief to Pensioners and opined that flat rate for payment of Dearness relief would be in adverse interest of the Pensioners.

Read more here.

SC: Jurisdiction of HC in Second Appeal Confined only to Questions Framed u/S 100 of CPC

In this recent case, the Two-Judge Bench of the Supreme Court delved into the law relating to second appeal as enumerated under Section 100 of CPC.

Section 100 of CPC  provides for appeals from appellate decrees. The statutory provision categorically states that an appeal shall lie to the High Court from a decree, if the High Court is satisfied that the case involves a substantial question of law.

The issue raised in the instant case was that the High Court while deciding and eventually allowing the   second   appeal   did   not   follow   the   mandatory procedure as prescribed under Section 100 of CPC.

The Apex Court in the case inter alia ruled that the jurisdiction of the High Court to decide the second appeal is confined only to the question framed by the High Court under sub-section (4).

Read more here.

SC’s Recent Verdict on Forgery and Making of False Document

In this case, the Supreme Court was confronted with the offences of forgery under Section 463 of IPC and making of false document under Section 464 of IPC.

The Supreme Court in view of the statutory provisions ruled that a charge of forgery cannot be imposed on a person who is not the maker of the same. That making of a document is different than causing it to be made. As Explanation 2 to Section 464 of IPC further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery.

Read more here.

SC: Domestic Violence Act, 2005 is Retrospectively Applicable

In a recent order passed by Three-Judge Bench of the Supreme Court, the Court has ruled that the Protection of Women against Domestic Violence Act, 2005 (Domestic Violence, 2005) is retrospectively applicable i.e. it applies on cases which took place prior to the said enactment. The Apex Court in the case was hearing challenge against Rajasthan High Court’s order passed in 2013 whereby the High Court had ruled that the remedy under Section 12 of the Domestic Violence Act, 2005 covers the act of violence committed even prior to coming into force of the Act.  

Read more here.

SC: Death/Injury while Boarding or De-boarding Train Liable to be compensated

In this landmark case, the Supreme Court settled some substantial issues pertaining to railway accident claims. The issues that were raised in the case were:

  • Quantum of Compensation
  • Application of Principle of Strict Liability
  • Definition of Passenger
  • Rate of Interest

The Apex Court in the case inter alia held that death or injury in the course of boarding or de-boarding a train will be an ‘untoward incident’ entitling a victim to the compensation and will not fall under the proviso to Section 124A merely on the plea of negligence of the victim as a contributing factor.

Read more here.

SC Approves Admissibility of Parliamentary Standing Committee Reports in Evidence

In a 338 pages long judgment, the Five-Judge Constitution Bench of the Supreme Court delivered its verdict to hold that the Courts can rely on Parliamentary Standing Committee Reports (PSC). Hence, the intrinsic issue taken up for consideration was whether a Parliamentary Standing Committee (PSC) report can be placed reliance upon for adjudication of a fact in issue and also for what other purposes it can be taken aid of?

Read more here.

SC: Ph.D from Open University Equivalent to Ph.D from Regular University

The issue taken up for consideration by the Apex Court was whether a Ph.D degree conferred by an Open university under the Netaji Subhash Open University Act, 1997, and a Ph.D degree conferred by a regular University ought to be treated differently for the purpose of appointment for the post of Principal/Lecturer/Reader etc., in the non-government colleges where such Ph.D degree is an essential qualification?

The Apex Court while arriving at its decision heavily relied on the case of Annamalai Univbersity vs. the Secretary to the Government, Information and Tourism Department & Ors. to hold that Ph.D degree issued by an Open University and another Ph.D degree issued by a formal conventional university must be treated at par having been so issued under the uniform standards prescribed by University Grants Commission Act.

Read more here.

SC: Civil Suit not Maintainable where Proceedings u/SARFAESI Act has been initiated

One of the intrinsic question taken up by the Two-Judge Bench of the Supreme Court in the case was maintainability of the suit by the second respondent – Nandini seeking partition wherein the order of injunction was passed?

In view of the facts and circumstances of the case, the Two-Judge bench of the Supreme Court made reference to the case of Jagdish Singh vs. Heeralal and others to hold that the suit filed by the second respondent is not maintainable.

Read more here.

SC: Former Chief Ministers cannot Occupy Government Bungalow  

The seminal issue taken up by the Two-Judge Bench of the Supreme Court in the case was that “Whether retention of official accommodation by the functionaries mentioned in Section 4(3) of the 1981 Act after they had demitted office violate the equality clause guaranteed by Article 14 of the Constitution of India?”

The Supreme Court in the noteworthy case held that the Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.

Read more here.

SC Expounds on Doctrine of Last Seen Theory

In this case, the Two-Judge Bench of the Supreme Court has fundamentally stated that the last seen theory as a facet of circumstantial evidence is a weak kind of evidence if conviction is to be solely based on it. However, if there are incriminating circumstances coupled with the last seen theory then the same is a corroborative evidence to implicate the accused.

Read more here.

SC says Arbitration Clause in Insurance Policy is to be Construed Strictly

The key observations made by the Apex Court in the case pertaining to interpretation of arbitration clause in Insurance Policy were:

That an arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. It can also lay the postulate in which situations the arbitration clause cannot be given effect to.

That if a clause stipulates that under certain circumstances there can be no arbitration, and they are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest.

Read more here.

SC Issues Directions for Speedy Disposal of Child Rape Cases u/POCSO Act  

The petitioner in the case urged the Apex Court to ensure that trial in cases involving rape of child below 12 years is completed within 6 months from the date when the FIR is lodged. The Apex Court in the case took a strong note of the situation and highlighted the number cases pending under the POCSO Act in various States particularly Uttar Pradesh and Madhya Pradesh.

In view of the aforesaid, the Supreme Court Bench has issued directions for speedy investigation and trial of cases registered under the POCSO Act.

Read more here.

SC: When Records of Trial Court are Summoned, Photocopy of the Record may be sent

In a case recently taken up by the Supreme Court (Asian Resurfacing of Road Agency P. Ltd. and Anr. v. Central Bureau of Investigation), the Court has directed that in all such cases wherein records of the Trial Court are summoned, the trial courts may send photocopy/scanned copy of the record and retain the original so that the proceedings are not held up.

Read more here.

SC Directs Govt. to Formulate Pension Scheme for Regional Rural Bank Employees

In a remarkable case the Two-Judge Bench of the Supreme Court has upheld the order passed by Division Bench of Rajasthan High Court in the case of Union of India v. Gramin Bank Pensioner Samiti & Ors in 2012.

The Supreme Court has directed the Union of India to implement the impugned judgment in respect of all the regional rural banks expeditiously and at any rate within three months from the date of production of a copy of this judgment.

Read more here.

DECISIONS BY THE HIGH COURTS

Delhi HC Issues Guidelines for Recording Undertaking in Divorce by Mutual Consent Cases

In a recent case, the Delhi High Court has issued guidelines for the Court to follow while recording Agreement/ Undertaking in a petition under Section 13B (1) of the Hindu Marriage Act i.e. in case of divorce by mutual consent. An intriguing concern that was raised in the case was Whether a party, which has under a settlement agreement decreed by a Court undertaken to file a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 can be held liable for contempt, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13B(2) of the Act?

Read more here.

Bombay HC on Claim of Maintenance u/Domestic Violence Act, 2005

In this recent case, the Bombay High Court has elaborated on the essentials of invoking plea of maintenance under the Protection of Women from Domestic Violence Act, 2005 to hold that every person cannot invoke the jurisdiction of the Court under the 2005 Act, simply for claiming maintenance, as the purpose of the enactment is to protect rights of women who are victims of violence of any kind occurring within the family.

Read more here.

Bombay HC: Pheras Around Burning Incense Sticks is Saptapadi u/Hindu Marriage Act

In a recent case, the Bombay High Court while deciding a matrimonial case recognized a bundle of burning aggarbattis as “sacred fire” under Section 7 of the Hindu Marriage Act, 1955.

That merely because they took seven pheras around the burning aggarbattis did not mean that no seven pheras were taken around the sacred fire as contemplated under section 7 of the Hindu Marriage Act, 1955.

Read more here.

Delhi HC: Levelling false allegations of Illicit Relationship- a Ground for Divorce

The Delhi High Court while pronouncing its verdict in the recent case made reference to Supreme Court’s holding in the case of Swati v. Arvind Mudgal, wherein it was held that false, scandalous and malicious allegations made in the written statement amount to cruelty.

Read more here.

Bombay HC: Mere Possession of Arms without Knowledge is Not punishable u/Arms Act

In the case, the Division Bench of Bombay High Court has reiterated the settled legal proposition that mere possession of arms without knowledge does not amount to an offence punishable under the Arms Act.

Read more here.

Calcutta HC: Process u/Section 202 of CrPC not Mandatory for Cheque Dishonor Cases

The Two-Judge Bench of Calcutta High Court recently took up a batch of petitions to decide issues pertaining to the amendment of Section 202 of Code of Criminal Procedure  as enacted vide Section 19 of the Criminal Procedure (Amendment) Act, 2005. One of the seminal issues that fell for consideration before the Division Bench of the High Court was whether the amendment of Section 202 of Code of Criminal Procedure as enacted vide Section 19 of the Criminal Procedure (Amendment) Act 2005 (25 of 2005) will apply in case of offences punishable under Section 138/141 of the Negotiable Instruments Act, 1881?

The Calcutta High Court in the case ruled that in cases falling under Section 138 read with Section 141 of the N.I. Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202 (1) before issuing summons to an accused residing outside the territorial jurisdiction of the learned Magistrate concerned.

Read more here.

 

 

About the Author

Shilpi Sharan

- Shilpi Sharan is the Editor at Vakilno1.com - an Advocate with extensive knowledge in myriad fields of Law. She has a flair of writing and has legal publications in national and international law magazines to her credit. She focuses on legal research and aims at raising public awareness of laws in India.