Legal Administrator February Newsletter 2024 - ISSUE 12

“It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be the sovereign's boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the twoedged sword of craft and oppression and left it the staff of honesty and the shield of innocence.” Krishna Iyer, J. and Bhagwati, J. Fertilizer Corporation Kamgar Union AIR 1981 SC 844 01/02 QUOTE THE LEGAL ADMINISTRATOR THE LEGAL ADMINISTRATOR Issue 12 : February, 2024 LAL BAHADUR SHASTRI NATIONAL ACADEMY OF ADMINISTRATION, MUSSOORIE LAL BAHADUR SHASTRI NATIONAL ACADEMY OF ADMINISTRATION, MUSSOORIE

“Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill vivified in matchless, words: “At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper — no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.” If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men “dressed in little, brief authority”. For “be you ever so high, the law is above you.” “In order to maintain the purity of the electoral process, the “little cross” on the “little bit of paper” must be made only by the metaphorical “little man” walking into the “little booth” and no one else.” Quote : CJI D.Y. Chandrachud CJI DYC Chandrachud quoting Justice Krishna Iyer in Kuldeep Kumar Vs U.T. Chandigarh and Ors 2024 INSC 129 (Para 45) LATIN MAXIM “Suppressio Veri, Expressio Faisi” i.e., suppression of the truth is equivalent to the expression of falsehood The suppression or failure to disclose what one party is bound to disclose to another, may amount to fraud. Where a person is found to be guilty of suppressio veri suggestio falsi for having concealed material information from scrutiny of the Court, he is not entitled for any equitable relief under Order 39 of CPC (5 of 1908). Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.

ELECTORAL MISCONDUCT The Chandigarh Municipal Corporation (Procedure and Conduct of Business) Regulations 1996 Kuldeep Kumar vs. UT Chandigarh SLP(C) No. 002998 - / 2024 2024 INSC 129 Held: On 20 February 2024, the SC held that the result of the Chandigarh Mayoral election declared by the Presiding Officer is plainly contrary to law and directed it to be quashed and set aside. Since setting aside of the entire election process will compound the destruction of the democratic principles which happened due to the conduct of the Presiding Officer, the Court invoked its powers under Article 142 of the Constitution to pass the directions to ensure that the process of electoral democracy is not allowed to be thwarted by such subterfuges. The brazen nature of the malpractice, visible on camera, made the situation all the more extraordinary, justifying the invocation of the power of this Court under Article 142. Accordingly, the appellant, Kuldeep Kumar, was declared to be the validly elected candidate for election as Mayor of the Chandigarh Municipal Corporation. The conduct of the Presiding Officer has to be deprecated at two levels, held the SC. Firstly, he has unlawfully altered the course of Mayoral election. Secondly, in making a solemn statement before this Court on 19 Feb, the Presiding Officer expressed falsehood for which he must be held accountable. The SC accordingly initiated criminal proceedings under Section 340 of the Cr.P.C. against Anil Masih for making false statements before the Court. Facts: The case pertains to electoral malpractices by the presiding officer who conducted the election to the post of Mayor at the Chandigarh Municipal Corporation. The Presiding Officer (a nominated councillor who belonged to the Party B) had declared 8 ballots cast in favour of Party A to be invalid. As a result, out of the total 36 votes, only 28 votes were counted. The Party A councillor Kuldeep Kumar(Appellant) secured 12 votes and the Party B candidate got 16 votes. The Court found that the Presiding Officer had evidently put his own mark on the bottom half of the ballots to create a ground for treating the ballot to have been invalidly cast. After a physical inspection of the ballots, the Court found that the Presiding Officer had put a one-line mark at the end of these eight ballots. The Court found his statement that he had put these marks since these ballots were already defaced and so he wanted to segregate them, to be false, as the ballots were not defaced. Analysis: The Court noted that as per the Regulation 6 a ballot can be invalid only under three eventualities - (1) more than one vote is cast, (2) there is any mark identifying the voter, (3) the marks are placed in an ambiguous manner making it doubtful to whom the vote is cast. The Court held that none of the above eventualities are fulfilled in the 8 ballots. The vote was cast by placing a rubber stamp on the upper half of the ballot and hence the ink mark which was placed on the bottom half by the Presiding Officer would be of no consequence. The ballots had not been defaced when the Presiding Officer put his mark at the bottom. The ballots left no manner of doubt about the candidate for whom the ballot was cast. Hence, the ballots are to be treated as valid, ignoring the marking made by the Presiding Officer. https://www.livelaw.in/pdf_upload/4999202411550631j udgement20-feb-2024-523874.pdf

Kunal Kamra v. Union of India WP(L)/9792/2023 2024: BHC-OS:1575-DB Bombay High Court a)the entire amendment is overbroad, vague and without controlling guidelines and is ultra vires the governing parent Act, and thus manifestly arbitrary. b) It is violative of constitutional freedoms; specifically, those guaranteed under Article 19(1)(a) of the Constitution of India, the right to free speech. At least one Petitioner (Kunal Kamra) argued that the amendment infringes his right to carry on a legitimate profession under Article 19(1)(g). c)Article 14 permits classification, not class legislation. Thus, even assuming that the purpose is legitimate — to weed out information relating to the business of the Central Government that is fake, false or misleading — carving out only the business of the Central Government is class legislation. More importantly, the second test, that there must be a rational nexus to the objective is not met. The impugned Rule is not violative of Article 14 based on the FCU comprising of government officials thereby making the Government the final arbiter in its own cause. d) Also, no such amendment could be effected by executive action or delegated legislation. Even a statutory amendment by Parliament was impermissible for that would violate not just Article 19(1)(a) but also Article 141 of the Constitution The impugned amendment and the legal framework: Section 79(1) of the IT Act 2000, is the safe harbour provision which provides immunity to the intermediary by making it not be liable for any third-party information, data, or communication link made available or hosted by it. It is subject to Section 79(2) and, in Rules 3(i)(II)(A) & (C) of the IT Amendment Rules, 2023 Held: On 31 January 2024, Bombay High Court delivered a split verdict on the pleas seeking to strike down Rules 3(i)(II)(A) & (C) of the IT Amendment Rules, 2023 which empowers the Central government to establish a fact-checking unit (FCU) to identify any 'fake, false or misleading' information about its business on social media platforms. Whilst Justice Neela Gokhale upheld the amendment, Justice Gautam Patel ruled that the 2023 amendments were struck down as ultra vires and violative of the fundamental rights. As per the Bombay High Court Rules, the matter was placed before a third judge. In early March the reconstituted bench of Justices GS Patel and Neela Gokhale pronounced the interim order after the third judge, Justice Chandurkar, opined that no case was made out for interim relief until he decides the clutch of petitions. The majority view of the HC (2:1) was that the interim applications for stay and continuation of the previous statement (by the Union not to notify the FCU) were rejected, and the Court refused to restrain the Union government from notifying its Fact Check Unit. Facts: The several Petitioners from various walks of life, such as the Editors Guild and the Association of Indian Magazines, the News Broadcasters and Digital Association (all users of digital media and not intermediaries) had challenged the Central Government’s 2023 impugned amendment to the said rules on the grounds that: particular Section 79(2)(c), which allows theimmunity to be applicable only if theintermediary carries out the duty to ‘observedue diligence’ while discharging his dutiesunder this Act and also observes such other guidelines as the Central Government mayprescribe in this behalf. Section 87 confers rule-making power onthe central government to make rules, and inthis case, rules under Sections 87(1) (z) regarding the procedures and safeguards for blocking for access by the public under subsection (3) of section 69A; and 87(1)(zg) regarding the guidelines to be observed bythe intermediaries under sub-section (2) of section 79. Further 69A gives the Power to issuedirections for blocking for public access of any information through any computer resource to the central govt. On 25th February 2021, the Union of Indianotified the Information Technology(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“the Rules”). These were expressly stated to be madeunder Section 87(1)(z) and (zg) of the IT Act. The 2023 amendment of 6th April 2023amended rule 3(1) (Due diligence by anintermediary) and rule 7 (Non-observanceof Rules by an intermediary). These amendments trigger the loss of safeharbour and the liability to prosecution under Rule 7 based upon whether or not the content hosted by the intermediary is about “thebusiness of the Central Government”. If it isnot about the business of the Central Government, there is no loss of safe harbour or liability to prosecution unless knowledgeand intent of the user is established. Therequirement is that it is the user who must beaware that the content is “patently false or untrue or misleading” and must, with that awareness, “knowingly and intentionally” publish it. This is markedly different from the other class, content said to relate to ‘the business of theCentral Government’. For this content, there isan arbiter: the FCU that decides what is fake, false or misleading. Once it is so decided, andif the content continues to be hosted by the

Analysis of Judgement: J Patel observed that the fact that the amendment requires intermediaries to immediately block content deemed "fake" or "misleading" by the government, without debate or dissent contradicts the claim that debate is welcomed. After-the event grievance redressal mechanisms do not fulfil the purpose as there remains no scope for any debate, dissent or satire before the material is excised from the public domain. The entire argument of the Union has more or less proceeded on the basis that all users are individuals, but, Users are also entities such as news outlets and journals. Not only do they have their own fact-checking systems, but they and their individual writers publish in print and online. The decisive test must surely be that if the material in print cannot be subjected to FCU checking and compelled deletion, there is no reason why, merely because the exact same material also appears online it is susceptible to unilateral determination of fakeness, falsity or being misleading.” J Gokhale observed that the exemption under Section 79 ceases to operate only if the offensive information as per the said Rule affects any restriction under Article 19(2) of the Constitution, hence is neither ultra vires to IT Act nor to judgment in Shreya Singhal. As against FCU comprising of government officials and violation of Article 14, the Court highlighted the user’s or aggrieved person’s right to approach grievance redressal intermediary, irrespective of knowledge or intent of the user, there is an automatic loss of safe harbour and a liability to prosecution of the intermediary. In other words, the moment any content (pertaining to the business of the Central Government) is identified by the FCU as a fake, false or misleading, the intermediary has no choice: it must not permit it to be hosted, published, etc., either itself or by any user. If it does not, Rule 7 operates immediately and takes away safe harbour and exposes the intermediary to prosecution. Arguments: The UOI conceded that a Fact Check Unit in the Central Government already exists in the PIB, which has fact-checking information relating to the Central Government and disseminating such factchecking for the benefit of the public. The Solicitor General asserted that the government welcomes debate, dissent, satire and the Ministry of Information and Technology submitted that it would be in public interest for “authentic information” related to the government's business to be ascertained and disseminated after fact checking by a government agency (FCU) “so that the potential harm to the public at large can be contained.” The petitioners conceded that the State in India does have a legitimate regulatory interest in addressing various forms of harmful speech, but this case does not pertain to the egregious harms but only to one particular class, affairs or matters that relate to the business of the Central Government. Safe harbour lies at the heart of the exercise of freedom of speech and expression on the internet. It protects not just intermediaries but, through them, their users — precisely those in whom the fundamental right is vested. Intermediaries themselves have no direct interest in particular user-content. Consequently, confronting intermediaries with the loss of statutory safe harbour is a form of directing or mandating censorship (or self-interested censorship) of identified online content relating to the business of the Central Government. mechanism and the appellate authority as contemplated under the Rules, making the competent court as the final arbiter. Since the charter of the FCU, the extent of its authority, the manner of its functioning in ascertaining fake, false or misleading information, etc, is yet unknown, in the event of any actual bias exhibited by the FCU, recourse to the courts of law is always open to the aggrieved person. Thus, a challenge to a potential abuse by the FCU on the basis of an apprehension is not maintainable and to that extent it is pre-mature. https://www.scconline.com/blog/post/ 2024/01/31/it-rules-establishing-factcheck-unit-bombay-hc-delivers-splitverdict/ https://www.verdictum.in/pdf_upload/il ovemergedwatermark-1584904.pdf https://www.livelaw.in/top-stories/factcheck-unit-bombay-high-court-centralgovt-it-rules-amendment-2023-socialmedia-content-252162

findings recorded by the Inquiry Officer should not be interfered by the appellate authority or by the writ court when the finding of guilt recorded by the Inquiry Officer is based on perverse finding the same can always be interfered, the SC observed. Re charge no. 2 against the appellant about directly sending the representations to the High Court and Hon'ble Chief Minister/Minister without routing the same through proper channel, and without permission of the Head of the Department, the SC observed that Class-IV employee, when in financial hardship, may represent directly to the superior but that by itself cannot amount to major misconduct for which punishment of termination from service should be imposed. https://main.sci.gov.in/supremecourt/2 019/15052/15052_2019_6_1501_50388_J udgement_15-Feb-2024.pdf Held: Representing directly to the superior by a Class-IV employee, when in financial hardship, cannot amount to major misconduct for which punishment of termination from service should be imposed. Consequently, the appellant was reinstated in service with all consequential benefits Fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. Facts: A class-IV employee employed in the Bareilly Judgeship as an Ardly was transferred and posted in 2001 as a Process Server in the Nazarat of an outlying court of Baheri, District Bareilly, but he was denied the allowance as a Process Server for allegedly refusing to pay a bribe for the same. He made representations to the Registrar General of the High Court and other officials of the State Government including the then Chief Minister without routing the same through proper channels. Post an inquiry he was dismissed from service in 2007 and the HC upheld the same. The appellant had contended that the punishment imposed on him constitutes a flagrant breach of Rule 3 of the U.P. Government Servant Conduct Rules, as the quantum of punishment imposed on the appellant is not commensurate to the guilt. Analysis: Qua the first charge against the appellant, a harijan, that he had made false allegations of caste discrimination, the SC found that such a statement was made by the Central Nazir and not him, and hence it was set aside. Ordinarily the undermines human dignity, right to non-discrimination and fair treatment. Laws and regulations based on gender-based bias are constitutionally impermissible. Rules making marriage of women employees and their domestic involvement a ground for disentitlement would be unconstitutional. Facts: the MNS Branch was governed by Army Instruction No. 61 of 1977, titled “Terms and conditions of service for the grant of permanent commissions in the Military Nursing Service”. As per this, termination of appointment may be done on the opinion of the Medical Board to be unfit for service or getting married or for misconduct. The same was withdrawn by a subsequent letter dated 29.08.1995. https://main.sci.gov.in/supremecourt/2 016/29274/29274_2016_2_101_50346 _Order_14-Feb-2024.pdf Chatrapal Vs the State Of Uttar Pradesh & Anr. C.A. No. 002461 / 2024 2024 INSC 115 Union of India vs. Ex. Lt. Selina John Civil Appeal No. 1990 of 2019 Diary No.- 29274 – 2016 Held: On February 14, 2024 the SC awarded compensation of Rs.60,00,000/- (rupees sixty lakh only) to the respondent, who as a Permanent Commissioned Officer in the Military Nursing Service, was released/discharged from service while serving in the rank of Lieutenant on the ground that she had got married, a rule that was applicable only to women nursing officers. Such rule was held to be ex-facie manifestly arbitrary, as terminating employment because the woman has got married is a coarse case of gender discrimination and inequality. Acceptance of such patriarchal rule Service law

case, registered against him under the bona fide belief that he was only obliged to give details of any pending proceedings. He was given a letter cancelling his selection for the said post. The case of the Department was that, under Clause 9 of the recruitment notification, if any fact is concealed in the affidavit by the candidate, his candidature is liable for cancellation. The High Court dismissed his appeal and hence he moved to the Apex Court. Analysis: Clause 4 of the Form of Verification of Character states that the character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be the duty of the appointing authority to satisfy itself on this point. The SC found that the order of cancellation of does not even follow the mandate prescribed in Clause 4. Avtar Singh v. Union of India and Ors. (2016) 8 SCC 471, clearly lays down that though a person who has suppressed the material information cannot claim unfettered right for appointment, he or she has a right not to be dealt with arbitrarily. The Court noted that due to multiple columns in the verification affidavit, questions were asked from the appellant in different permutations and combinations and he must have been in a deep dilemma as there was an imminent prospect of losing his employment. On perusal of the verification documents the SC found that the verification report after noticing the criminal case and the subsequent acquittal stated that his character was good, that no complaints were found against him and that his general reputation was good. The Superintendent of Police, in his letter to the Commandant, endorsed the report and reiterated that the character of the candidate was excellent. The Court further observed that broadbrushing every non-disclosure as a disqualification, will be unjust and the same will tantamount to being completely oblivious to the ground realities obtaining in this great, vast and diverse country. Held: On 22 February, the SC noted that instead of considering whether the appellant was suitable for appointment, the Appointing Authority has mechanically held his selection was irregular and illegal because the appellant had furnished an affidavit with incorrect facts. Hence, the order of cancellation of appointment as Constable is neither fair nor reasonable. It is not a hard and fast and a cut and dried rule that, in all circumstances, non-disclosure of a criminal case (in which the candidate is acquitted) in the verification form is fatal for the candidate’s employment. “The nature of the office, the timing and nature of the criminal case; the overall consideration of the judgement of acquittal; the nature of the query in the application/verification form; the contents of the character verification reports; the socio economic strata of the individual applying; the other antecedents of the candidate; the nature of consideration and the contents of the cancellation/termination order are some of the crucial aspects which should enter the judicial verdict in adjudging suitability and in determining the nature of relief to be ordered.” Facts: In this case, the appellant had applied for the post of Constable with an unblemished record, but five days after submitting the application, he was embroiled in a criminal case (under Sections 324, 352, and 504 of IPC). He cleared the written exam, the interview and the physical efficiency test too. In the meantime, he was acquitted in the criminal case. After being selected, he was required to submit an Affidavit disclosing criminal antecedents, if any. The accused submitted the affidavit cognizable or non-cognizable has ever been in which he stated that no criminal “Each case will depend on the facts and circumstances that prevail thereon, and the court will have to take a holistic view, based on objective criteria, with the available precedents serving as a guide. It can never be a one size fits all scenario.” https://www.verdictum.in/pdf_upload/r avindra-kumar-v-state-of-upwatermark1593201.pdf Ravindra Kumar v. State of U.P. & Ors. (2024 INSC 131) Service law contd. Union of India & ors. vs Paramisivan M., Civil Appeal No. 4967 of 2023 Held: On 08 February, the SC held that Central Industrial Security Force (“CISF”) personnel are entitled to receive House Rent Allowances (“HRA”) from the Union Government as provided to other paramilitary forces. In other words, where the employer was unable to provide family accommodation within the township to the enrolled personnel, they will be entitled to HRA. Facts: The matter pertains to House Rent Allowance for the accommodation being provided to the Personnel Below Officer Rank (PBOR) serving in the Central Industrial Security Force (CISF). The petitioner being employed in the CISF was, entitled for official accommodation but the same was not given to him i.e., neither rent free accommodation was provided nor House Rent Allowance (HRA) Analysis: The Court while rejecting the appeal filed by the Union of India held that the impugned judgment of the Delhi High Court followed its earlier judgment of 2008 in the case Jaspal Singh Mann Vs Union of India & Ors, which interpreted Rule 61(2) and held that CISF personnel will be entitled to House Rent Allowance (HRA) like other central government employees. In Jaspal Singh, the HC had stated that the Union Government cannot discriminate against the CISF personnel where in some of the paramilitary forces, 100 per cent of the force is being granted family accommodation or HRA in lieu thereof. https://main.sci.gov.in/supremecourt/201 8/3797/3797_2018_6_102_50143_Order_ 08-Feb-2024.pdf

Vasantha (Dead) Thr. Lr V. Rajalakshmi @ Rajam (Dead) Thr.Lrs., Civil Appeal No. 3854 Of 2014 2024 INSC 109 BAIL Amol vitthal vahile vs. The state of Maharashtra., Criminal appeal no. 545/2024 Held: On 13 February, the SC held that the physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases related to adverse possession. The starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. Facts: In 1947, when a mother transferred property inherited at the death of her husband, in one form to her two sons and in another, to her daughter led to the dispute later on. Some forty-odd years later, the daughter’s husband filed a suit for declaration of title and to establish his vested rights and interest in the property, in 1993. The suit was decided in 1999, first appeal in 2002 and Regular second appeal in 2012. Analysis: Plea of adverse possession is not a pure question of law but a blend of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession; (b) what was the nature of his possession; (c) whether the factum of possession was known to the other party; (d) how long his possession has continued; and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to prove his adverse possession. As against the rights of the paperowner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights but to protect those who have maintained the possession of property for the time specified by the statute under a claim of right or colour of title. However, at the same time, the Court emphasized that this principle depends on limitation as the right to access the Court expires after a stipulated period. The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him; secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant without asserting them in a court of law. https://main.sci.gov.in/supremecourt/ 2013/3382/3382_2013_9_1501_50497 _Judgement_13-Feb-2024.pdf ADVERSE POSSESSION Held: On 16 February the SC requested the Hon’ble Chief Justice of the High Court of Bombay to direct all the learned Judges exercising the criminal jurisdiction to decide the matter pertaining to bail/anticipatory bail as expeditiously as possible. Article 21 of the Constitution of India is the soul of the Constitution as the liberty of a citizen is of paramount importance. Not deciding the matter pertaining to liberty of a citizen expeditiously and shunting away the matter on one or the other ground would deprive the party of their precious right guaranteed under Article 21 of the Constitution of India. Facts: The High Court instead of deciding the application for bail on merits shunted it on one or the other ground. Analysis: The SC noted that it had come across various matters from the High Court of Bombay where the bail/anticipatory bail applications are not being decided expeditiously. In one matter the application for anticipatory bail was not decided for a period of more than four years. The SC had also come across numerous matters wherein the learned Judges are not deciding the matter on merits but find an excuse to shunt the case on different grounds. https://www.livelaw.in/pdf_upload/415642 0232024-02-16-524568.pdf

Held: On February 29, 2024, a Constitution Bench overruled the 2018 Asian Resurfacing judgment that mandated an automatic vacation of stay orders after six months. The SC summarised its main conclusions as follows: a. A direction that all the interim orders of stay of proceedings passed by every High Court automatically expire only by reason of lapse of time cannot be issued in the exercise of the jurisdiction of this Court under Article 142 of the Constitution of India; b. Important parameters for the exercise of the jurisdiction under Article 142 of the Constitution of India which are relevant for deciding the reference are as follows: (i) The jurisdiction can be exercised to do complete justice between the parties before the Court. It cannot be exercised to nullify the benefits derived by a large number of litigants based on judicial orders validly passed in their favour who are not parties to the proceedings before this Court; (ii) Article 142 does not empower this Court to ignore the substantive rights of the litigants; (iii) While exercising the jurisdiction under Article 142 of the Constitution of India, this Court can always issue procedural directions to the Courts for streamlining procedural aspects and ironing out the creases in the procedural laws to ensure expeditious and timely disposal of cases. However, while doing so, this Court cannot affect the substantive rights of those litigants who are not parties to the case before it. The right to be heard before an adverse order is passed is not a matter of procedure but a substantive right; and (iv) The power of this Court under Article 142 cannot be exercised to defeat the principles of natural justice, which are an integral part of our jurisprudence. High Court Bar Association Allahabad v. State Of Uttar Pradesh & Ors. | Criminal Appeal No. 3589 of 2023 2024 INSC 150 CONSTITUTION BENCH: AUTOMATIC VACATION OF STAY: ASIAN RESURFACING JUDGEMENT OVERRULED c. Constitutional Courts, in the ordinary course, should refrain from fixing a time-bound schedule for the disposal of cases pending before any other Courts. Constitutional Courts may issue directions for the timebound disposal of cases only in exceptional circumstances. The issue of prioritising the disposal of cases should be best left to the decision of the concerned Courts where the cases are pending; and d. While dealing with the prayers for the grant of interim relief, the High Courts should take into consideration the guidelines incorporated in paragraphs above. The SC clarified that in the cases in which trials have been concluded as a result of the automatic vacation of stay based only on the decision in the case of Asian Resurfacing, the orders of automatic vacation of stay shall remain valid. Facts: The original judgment, delivered by a three-judge bench comprising Justices AK Goel, Navin Sinha, and Rohinton Nariman, mandated automatic stay vacation after six months unless in any exceptional case, such stay is extended by a speaking order. The ruling stipulated that trial courts could resume proceedings without requiring courts to provide reasons or consider the circumstances of each case after six months from the issuance of stay orders by higher courts. Subsequently, the Supreme Court in August 2019 clarified that the six months' cap on interim stay orders will not be applied to Supreme Court orders. The SC had framed the following questions in this reference: (a) Whether this Court, in the exercise of its jurisdiction under Article 142 of the Constitution of India, can order automatic vacation of all interim orders of the High Courts of staying proceedings of Civil and Criminal cases on the expiry of a certain period? (b) Whether this Court, in the exercise of its jurisdiction under Article 142 of the Constitution of India, can direct the High Courts to decide pending cases in which interim orders of stay of proceedings has been granted on a day-to-day basis and within a fixed period? Analysis: The SC held that there cannot be automatic vacation of stay granted by the High Court and disapproved the direction issued to decide all the cases in which an interim stay has been granted on a day-to-day basis within a time frame. The SC held that such blanket directions cannot be issued in the exercise of the jurisdiction under Article 142 of the Constitution of India. https://scourtapp.nic.in/supremecourt/2023/47928/47 928_2023_1_1501_51053_Judgement_29-Feb-2024.pdf

Held: On 01 March 2024, the SC laid down a two-pronged test to determine the issue of limitation in relation to a petition under Section 11(6), as follows: (i) whether the petition under Section 11(6) of the A&C Act is barred by limitation, and (ii) whether the claims sought to be arbitrated are ex-facie dead claims and are thus barred by limitation on the date of commencement of arbitration proceedings If either of the issues has an answer which goes against the party seeking referral of disputes to arbitration, a court may refuse to appoint arbitral tribunal. The SC also observed that the Parliament should consider bringing an amendment to the Act, 1996 prescribing a specific period of limitation within which a party may move the court for making an application for appointment of arbitrators under Section 11 of the Act, 1996. Facts: Disputes arose between the parties with respect to the royalty fee and renewal of the franchise agreements. A recovery notice for non-payment of the same was issued in 2018, and three years later, in 2021, the petitioner took up the issue of nonpayment vide a legal notice. The respondent denied all claims, and countered that the same were barred by limitation. Following the refusal of the respondent to nominate an arbitrator as per mutually agreed upon procedure in response to notice for invocation of arbitration, the petitioner initiated the present proceedings before the Supreme Court in 2023. Analysis: The applicability of Section 137 of the Limitation Act, 1963 to applications under Section 11(6) of the Act, 1996 is a result of legislative vacuum as there is no statutory prescription regarding the time limit. The SC reiterated that the period of three years is an unduly long period for filing an application under Section 11 of the Act, 1996 and goes against the very spirit of the Act, 1996 which provides for expeditious resolution of commercial disputes within a time-bound manner. Various amendments to the Act, 1996 have been made over the years so as to ensure that arbitration proceedings are conducted and concluded expeditiously. https://scourtapp.nic.in/supremecourt/2023/16419/16419_2023 _1_1501_51000_Judgement_01-Mar-2024.pdf Held: On 20 February 2024, the SC opined that the following questions need to be referred to a larger Bench for answers: 1. Whether the powers of the Court under section 34 and 37 of the Arbitration and Conciliation Act, 1996, will include the power to modify an arbitral award? 2. If the power to modify the award is available, whether such power can be exercised only where the award is severable and a part thereof can be modified? 3. Whether the power to set aside an award under section 34 of the Act, being a larger power, will include the power to modify an arbitral award and if so, to what extent? 4. Whether the power to modify an award can be read into the power to set aside an award under section 34 of the Act? 5. Whether the judgment of this Court in Project Director NHAI vs. M. Hakeem, followed in Larsen Air Conditioning and Refrigeration Company vs. Union of India and SV Samudram vs. State of Karnataka lay down the correct law, as other benches of two Judges (in Vedanta Limited vs. Shenzden Shandong Nuclear Power Construction Company Limited , Oriental Structural Engineers Pvt. Ltd. vs. State of Kerala and M.P. Power Generation Co. Ltd. vs. Ansaldo Energia Spa ) and three Judges (in J.C. Budhraja vs. Chairman, Orissa Mining Corporation Ltd. , Tata Hydroelectric Power Supply Co. Ltd. vs. Union of India and Shakti Nath vs. Alpha Tiger Cyprus Investment No.3 Ltd. ) of this Court have either modified or accepted modification of the arbitral awards under consideration?” Analysis: Whether or not the Courts in exercise of power under sections 34 or 37 of the Arbitration and Conciliation Act, 1996 are empowered to modify an arbitral award is a question which frequently arises in proceedings before all Courts. While some decisions of the SC have answered the aforesaid question in the negative, there are decisions which have either modified the awards of the arbitral tribunals or upheld orders under challenge modifying the awards. Hence an authoritative pronouncement of the SC is required for clarity and the guidance of the Courts below. https://www.livelaw.in/pdf_upload/2078820212024-02- 20-523877.pdf Gayatri Balsamy Vs M/S ISG Novasoft Technologies Ltd., SLP (C) Nos.15336-15337/2021 Referral to larger Bench M/S Arif Azim Co. Ltd. Vs M/S Aptech Ltd. Arbitration petition no. 29 of 2023 2024 INSC 155 Section 11(6) of the Arbitration and Conciliation Act, 1996 and Section 137 of the Limitation Act, 1963. Arbitration and Conciliation Act, 1996

ostensibly present but has to be visible and conspicuous. It also requires an active act or direct act which led the deceased to commit suicide. The ingredient of mens rea cannot be assumed to be ostensibly present but has to be visible and conspicuous. Mere harassment is not sufficient to hold an accused guilty of abetting the commission of suicide. “In our opinion, the two courts faltered as they failed to apply the correct principles of law to the evidence on record on the subject of abetment of suicide. The two courts got enamoured by just three things, (i) the deceased committed suicide within seven years of marriage, (ii) the accused was demanding money from the parents of the deceased for starting some business, and (iii) the deceased used to remain tense. We do not say that these are irrelevant consideration. All the three aspects are relevant. But there are settled principles of law to be made applicable to the matters of the present type.” https://main.sci.gov.in/supremecourt/2008/35057/35057_2008_1 0_102_50755_Judgement_22-Feb-2024.pdf Indian Penal Code, 1860; Section 306, Abetment of Suicide Held: On 22nd February, 2024 whilst acquitting the husband after 30 years of the suicide by the wife, the SC held that the presumption under Section 113A of the Evidence Act would not automatically apply based on the mere fact that the deceased committed suicide within a period of seven years of her marriage, in the absence of cogent evidence of harassment or cruelty. In the case of accusation for abetment of suicide, The court should look for cogent and convincing proof of the act of incitement to the commission of suicide and such an offending action should be proximate to the time of occurrence. In the absence of any cogent evidence of harassment or cruelty, an accused cannot be held guilty for the offence under Section 306 of IPC by raising presumption under Section 113A. Appreciation of evidence in criminal matters is a tough task and when it comes to appreciating the evidence in cases of abetment of suicide punishable under Section 306 of the IPC, it is more arduous. The court must remain very careful and vigilant in applying the correct principles of law governing the subject of abetment of suicide while appreciating the evidence on record. Otherwise, it may give an impression that the conviction is not legal but rather moral. The SC observed that “the criminal justice system of ours can itself be a punishment, which was exactly that happened in this case. It did not take more than 10 minutes for this Court to reach to an inevitable conclusion that the conviction of the appellant convict for the offence punishable under Section 306 of the IPC is not sustainable in law. The ordeal for the appellant started some time in 1993 and is coming to the end in 2024, i.e. almost after a period of 30 years of suffering.” Facts: The wife consumed poison and died by suicide within a year of her marriage in 1992. On the allegations of harassing Rani for money, the appellant was charged under Section 306 IPC for abetment of suicide. He was convicted by the Trial Court in 1998. Analysis: The basic ingredients to constitute an offence under Section 306 of the IPC are suicidal death and abetment thereof. Oral evidence of witnesses does not disclose any form of incessant cruelty or harassment on the part of the husband which would in ordinary circumstances drag the wife to commit suicide as if she was left with no other alternative. Mere demand of money from the wife or her parents for running a business would not constitute cruelty or harassment. If there was clinching evidence of incessant harassment, on account of which the deceased was left with no other option but to put end to her life it could have been said that the appellant intended the consequences of the act (ie deceased's suicide). In order to convict an accused under Section 306 IPC, the state of mind to commit a particular crime cannot be assumed to be Naresh Kumar v. State of Haryana, Criminal Appeal (No.) 1722 of 2010 2024 INSC 149 Prabhu v. State SLP (Crl.) Diary No. 39981/2022 Held:On 30 January, whilst quashing the FIR under Sec 306 IPC, the SC held that merely advising a partner to marry as per the advice of parents would not attract the penal provisions of abetment to suicide. There must be direct or indirect acts of incitement to the commission of suicide. The accused must be shown to have played an active role by an act of instigation or by doing certain acts to facilitate the commission of suicide. Where the words uttered are casual in nature and which are often employed in the heat of the moment between quarrelling people, and nothing serious is expected to follow from the same, the same would not amount to abetment of suicide. In order to constitute 'instigation', it must be shown that the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide. The words uttered by the accused must be suggestive of the consequence. Facts: The girl committed suicide after her boyfriend advised her to marry as per her parent's choice in 2019. She had become upset after the boy's family started looking for a bride. Following her death, the police registered an FIR for abetment to suicide under Section 306 of the Indian Penal Code against the boyfriend, which the HC declined to quash. Analysis: In Kamalakar vs. State of Karnataka in Criminal Appeal No. 1485 of 2011 [decided on 12.10.2023], the Supreme Court held that to charge someone for the offence of abetment to suicide, the prosecution must prove that the accused played a role in the suicide. Specifically, the accused's actions must align with one of the three criteria detailed in Section 107 IPC.

Bridging the time gap between the illegal impugned action and restitution Manoj Kumar v. Union of India, CA no.2679/2024 2024 INSC 126 This means the accused: (i)either encouraged the individual to take their life, (ii) conspired with others to ensure the person committed suicide or (iii) acted in a way (or failed to act) that directly resulted in the person’s suicide. The SC expanded on the same and held that the following principles emerge: 1.Where the words uttered are casual in nature and which are often employed in the heat of the moment between quarrelling people, and nothing serious is expected to follow from the same, the same would not amount to abetment of suicide. 2. In order to constitute ‘instigation’, it must be shown that the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide. The words uttered by the accused must be suggestive of the consequence. 3. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. 4. There must be direct or indirect acts of incitement to the commission of suicide. The accused must be shown to have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. 5. The accused must have intended or known that the deceased would commit suicide because of his actions or omissions. Based on the above, it could not be said that the actions of the accused instigated Kousalya to take her life or that he conspired with others to ensure that the person committed suicide or any act of the appellant or omission instigated the deceased resulting in the suicide. Broken relationships and heart breaks are part of everyday life. It could not be said that the appellant by breaking up the relationship with Kousalya and by advising her to marry in accordance with the advice of her parents, as he himself was doing, had intended to abet the suicide of Kousalya. Hence the offence under Section 306 is not made out. The court also discharged the accused under Section 417 (Punishment of Cheating) and Section 4 of the Tamil Nadu Prohibition of Harassment of Woman Act, 2002 (Penalty of Harassment of Woman). https://main.sci.gov.in/supremecourt/2022/39981/39981_2 022_8_17_49942_Order_30-Jan-2024.pdf Held: On February 20, 2024, the SC observed that it was distressing to find Appeals of more than two decades are awaiting consideration and that the Courts must find a solution to this problem. While the primary duty of constitutional courts remains the control of power, including setting aside of administrative actions that may be illegal or arbitrary, it must be acknowledged that such measures may not singularly address repercussions of abuse of power. It is equally incumbent upon the courts, as a secondary measure, to address the injurious consequences arising from arbitrary and illegal actions. This concomitant duty to take reasonable measures to restitute the injured is the overarching constitutional purpose of the Courts. Facts: The writ petition was filed against the action of the respondent denying appointment on 22.05.2017. The writ petition came to be decided by the Single Judge on 24.01.2018, the Division Bench on 16.10.2018, and then the case was carried to this Court in the year 2019 and was being decided in 2024. Analysis: The SC observed: “In public law proceedings, when it is realised that the prayer in the writ petition is unattainable due to passage of time, constitutional courts may not dismiss the writ proceedings on the ground of their perceived futility. In the life of litigation, passage of time can stand both as an ally and adversary. Our duty is to transcend the constraints of time and perform the primary duty of a constitutional court to control and regulate the exercise of power or arbitrary action. By taking the first step, the primary purpose and object of public law proceedings will be subserved. The second step relates to restitution. This operates in a different dimension. Identification and application of appropriate remedial measures poses a significant challenge to constitutional courts, largely attributable to the dual variables of time and limited resources. The temporal gap between the impugned illegal or arbitrary action and their subsequent adjudication by the courts introduces complexities in the provision of restitution. As time elapses, the status of persons, possession, and promises undergoes transformation, directly influencing the nature of relief that may be formulated and granted. The inherent difficulty in bridging the time gap between the illegal impugned action and restitution is certainly not rooted in deficiencies within the law or legal jurisprudence but rather in systemic issues inherent in the adversarial judicial process. The protracted timeline spanning from the filing of a writ petition, service of notice, filing of counter affidavits, final hearing, and then the eventual delivery of judgment, coupled with subsequent appellate procedures, exacerbates delays. It is in this reality and prevailing circumstance that we must formulate an appropriate system for preserving the rights of the parties till the final determination takes place. In the alternative, we may also formulate a reasonable equivalent for restitution of the wrongful action.” https://www.livelaw.in/pdf_upload/manoj-kumar-523841.pdf

Article 342 : Constitution Presidential notification of a tribe or tribal community as a Scheduled Tribe Chandigarh housing board v. Tarsem lal 2024 INSC 119 Held: On February 07, 2024 the SC noted the following: i. The Presidential notification of a tribe or tribal community as a Scheduled Tribe by the President of India under Article 342 is a sine qua non for extending any benefits to the said community in any State or U.T. ii. This implies that a person belonging to a group that is recognized as a Scheduled Tribe in a State would be recognized a Scheduled Tribe only within the said State and not in a U.T. where he migrates if no such Presidential notification exists in the said U.T. Hence, insofar as a person claiming benefit having regard to his status as a Scheduled Tribe in a State, when he migrates to a Union Territory where a Presidential Order has not been issued at all insofar Scheduled Tribe is concerned, or even if such a Notification is issued, such an identical Scheduled Tribe does not find a place in such a Notification, the person cannot claim his status on the basis of his being noted as a Scheduled Tribe in the State of his origin. Facts: The respondent herein had sought for allotment of LIG house reserved for Scheduled Tribes category in terms of the advertisement issued by the appellant herein; and the suit was decreed by the Trial Court in his favour and affirmed by the First Appellate Court as well as in the second appeal. CHB(Chandigarh Housing Board) had contested the suit filed by the petitioner for allotment of house under the ST category on the grounds that no right much less a legal right to allotment of four houses kept in abeyance could accrue to the Scheduled Tribes in the absence of the notification of any Scheduled Tribe by the President of India in so far as Union Territory of Chandigarh was concerned. The trial court and the HC disagreed and held in the respondent’s favour noting that although Article 342 of the Constitution had not been ‘made applicable to the U.T. Chandigarh’, it would not mean that Scheduled Tribes cannot get any benefit from the Chandigarh Administration. Analysis: Firstly, there is no specific Presidential Order issued insofar as Scheduled Tribes are concerned vis-a-vis the Union Territory of Chandigarh and secondly, that it is only by a Presidential Order issued under Article 342 of the Constitution of India that Scheduled Tribes could be recognized in an Union Territory or a State could be issued. The SC has repeatedly held that a person belonging to a Scheduled Caste in one State cannot be deemed to be a Scheduled Caste person in relation to any other State to which he migrates for the purpose of employment or education. The expressions "in relation to that State or Union Territory" and "for the purpose of this Constitution" used in Articles 341 and 342 of the Constitution of India would mean that the benefits of reservation provided for by the Constitution would stand confined to the geographical territories of a State/Union Territory in respect of which the lists of Scheduled 32 Castes/Scheduled Tribes have been notified by the Presidential Orders issued from time to time. A person notified as a Scheduled Caste in State 'A' cannot claim the same status in another State on the basis that he is declared as a Scheduled Caste in State 'A'. Therefore, the Presidential Orders issued under Article 341 in regard to Scheduled Castes and under Article 342 in regard to Scheduled Tribes cannot be varied or altered by any authority including the Court. It is Parliament alone which has been vested with the power to so act, that too, by laws made. Scheduled Castes and Scheduled Tribes thus specified in relation to a State or a Union Territory does not carry the same status in another State or Union Territory. Any expansion/deletion of the list of Scheduled Castes/Scheduled Tribes by any authority except Parliament would be against the constitutional mandate under Articles 341 and 342 of the Constitution of India. https://main.sci.gov.in/supremecourt/2018/44467/44467_2018 _12_15_50217_Judgement_07-Feb-2024.pdf

Police to exercise caution in Criminal Prosecution: Supreme Court Deepak Kumar Shrivas & anr. Vs State of Chhattisgarh & ors. Criminal Appeal No. 001007 / 2024 2024 INSC 117 Held: On February 19, 2024 the SC observed that such criminal prosecution should not be allowed to continue where the object to lodge the FIR is not for criminal prosecution and for punishing the offender for the offence committed but for recovery of money under coercion and pressure. The SC also stated that it becomes imperative that the police should exercise heightened caution when drawn into dispute pertaining to such unethical transactions between private parties which appear to be prima facie contentious in light of previous inquiries or investigations. The need for vigilance on the part of the police is paramount, and a discerning eye should be cast upon cases where unscrupulous conduct appears to eclipse the pursuit of justice. This case exemplifies the need for a circumspect approach in discerning the genuine from the spurious and thus ensuring that the resources of the state are utilised for matters of true societal import. Facts: The impugned FIR is a counterblast and has been maliciously lodged only to resist the appellant from recovering the amount paid by him to the respondent no.6. It is also submitted that the alleged transaction according to the FIR is of April, 2019 whereas the FIR has been lodged in July, 2022 after more than three years and, therefore, on the ground of delay, the alleged FIR deserves to be quashed. In the complaint made by the appellant in 2021 to the Collector an enquiry has been made by the Station House Officer of the Police Station concerned in which the fact that the respondent no.6 had stated that she had paid Rs.4 lacs to the appellant for providing a job to her daughter was recorded. This clearly means that respondent no.6 was well aware of the complaint made by the appellant and in the enquiry her statement had been actually recorded. The respondent no.6 therefore cannot raise a plea that she had no knowledge of the complaint made by the appellant. Despite the same she did not lodge any complaint against the appellant and SLP(Crl.) No. 9800 of 2023. Page 9 of 12 his brother and waited for more than a year to lodge the FIR in July, 2022. 12. According to the allegations made in the FIR, the job was to be provided by the appellant within three months of April, 2019 i.e. by July, 2019. However, the respondent no.6 did not take any action for a period of three years till July, 2022 when the FIR in question was lodged. Thus, the FIR suffers from a serious delay of three years which is totally unexplained. Analysis: The object of this dispute, manifestly rife with mala fide intentions of only recovering the tainted money by coercion and threat of criminal proceedings, cannot be allowed to proceed further and exploit the time and resources of the law enforcement agency. From the counter-allegations levelled against each other between the parties in the present case, it becomes evident that the police finds itself entangled in the irrelevant and trivial details of such unethical private issues, diverting the resources away from the pursuit of more consequential matters. The valuable time of the police is consumed in investigating disputes that seem more suited for civil resolution. This underscores the need for a judicious allocation of law enforcement resources, emphasizing the importance of channelling their efforts towards matters of greater societal consequence. A reading of the entire material on record clearly reflects that it was totally an unlawful contract between the parties where money was being paid for securing a job in the government department(s) or private sector. Apparently, a suit for recovery could not have been filed for the said purpose and even if it could be filed, it could be difficult to establish the same where the payment was entirely in cash. Therefore, the respondent no.6 found out a better medium to recover the said amount by building pressure on the appellant and his brother by lodging the FIR. Under the threat of criminal prosecution, maybe the appellant would have tried to sort out and settle the dispute by shelving out some money. https://main.sci.gov.in/supremecourt/2023/30663/30663_202 3_8_1501_50548_Judgement_19-Feb-2024.pdf

Unlawful Activities (Prevention) Act, 1967 ("UAPA") Guidelines on bail limitations under the UAP Act Gurwinder Singh v. State of Punjab & Anr. Criminal Appeal no.704 of 2024 2024 INSC 92 Held: On 07 Feb 2024, the SC laid down the guidelines for grant of bail under UAPA. Section 43D(5) of the UAPA modifies the application of the general bail provisions in respect of offences punishable under Chapter IV and Chapter VI of the UAPA. Bail must be rejected as a ‘rule’, if after (i) hearing the public prosecutor and after (ii)perusing the ‘final report’ or ‘Case Diary’, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied, that the Courts would proceed to decide the bail application in accordance with the ‘tripod test’ (flight risk, influencing witnesses, tampering with evidence). The restrictions, on granting of bail in section 43D(5) are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail. The conventional idea in bail jurisprudence ‘bail is the rule, jail is the exception’ does not apply under UAPA. The ‘exercise’ of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D(5) - ‘shall not be released’, in contrast with the form of the words as found in Section 437(1) CrPC - ‘may be released’, suggests the intention of the Legislature to make bail, the exception and jail, the rule. Facts: The investigation by the National Investigation Agency (NIA), revealed that the accused persons received funds through illegal means sent by members of the banned terrorist organization which were channelled through illegal means such as “Hawala” and were sent to be used for furthering separatist ideology and to carry out terror activities and other preparatory acts; further, an ISI handler, was behind the operations of this module. The trial court and the High Court rejected the grant of bail to Appellant on the ground of seriousness of the nature of offence and that none of the protected witnesses had been examined. Analysis: The source of the power to grant bail in respect of nonbailable offences punishable with death or life imprisonment emanates from Section 439 CrPC, and Section 43D(5) of the UAPA modifies the application of the general bail provisions in respect of offences punishable under Chapter IV and Chapter VI of the UAP Act. On a textual reading of Section 43 D(5) UAPA, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twinprong test : 1) Whether the test for rejection of the bail is satisfied? 1.1 Examine if, prima facie, the alleged ‘accusations’ make out an offence under Chapter IV or VI of the UAP Act 1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC; 2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC (‘tripod test’)? On a consideration of various factors such as nature of offence, length of punishment (if convicted), age, character, status of accused etc., the Courts must ask itself: 2.1 Whether the accused is a flight risk? 2.2. Whether there is apprehension of the accused tampering with the evidence? 2.3 Whether there is apprehension of accused influencing witnesses? The question of entering the ‘second test’ of the inquiry will not arise if the ‘first test’ is satisfied. And merely because the first test is satisfied, that does not mean however that the accused is automatically entitled to bail. The accused will have to show that he successfully passes the ‘tripod test’. The SC also summarised the following 8-point propositions from Zahoor Ali Watali (2019) 5 SCC 1 as follows: Meaning of ‘Prima facie true’ [para 23]: On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet and Post Charges – Compared [para 23]: Once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the chargesheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case. Reasoning, necessary but no detailed evaluation of evidence [para 24]: The exercise to be undertaken by the Court at this stage--of giving reasons for grant or nongrant of bail--is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage.

Prevention of Money Laundering Act, 2002 Directorate of Enforcement v. State of Tamil Nadu & Ors. SLP (Criminal) No. 1959-1963 of 2024 Record a finding on broad probabilities, not based on proof beyond doubt [para 24]: “The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.” Duration of the limitation under Section 43D(5) [para 26]: The special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. Material on record must be analysed as a ‘whole’; no piecemeal analysis [para 27]: The totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance. Contents of documents to be presumed as true [para 27]: The Court must look at the contents of the document and take such document into account as it is. Admissibility of documents relied upon by Prosecution cannot be questioned [para 27]: The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by other evidence…….In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. https://main.sci.gov.in/supremecourt/2023/29067/29067_2023 _15_1501_50150_Judgement_07-Feb-2024.pdf Held: On February 27, the SC stayed the operation and execution of the impugned order of the Madras High Court staying the summonses issued to district collectors in Tamil Nadu requiring their appearance to give evidence and produce records as indicated in the annexures annexed to the said summons, in connection with the investigation/proceedings under the Prevention of Money Laundering Act, 2002 (PMLA), but allowed the investigation to continue, and directed the district collectors to appear and respond to the summonses issued by the ED on the next indicated date. Facts: a special leave petition filed by the Directorate of Enforcement (ED) against an interim order of the HC staying the operation of these summonses issued by the ED under the PMLA to district collectors in Tamil Nadu. Before the HC, the Tamil Nadu government contended that the Mines and Minerals (Development and Regulation) Act constituted a self-contained code, suggesting that the central agency lacked investigative powers under this legislation. It was also pointed out that the MMDR Act were not scheduled offences under the Prevention of Money Laundering Act, in support of the state government's argument that the ED had exceeded its jurisdiction by issuing summonses. Analysis: The State of Tamil Nadu's writ petition before the high court against the summons’s prima facie appeared to be 'thoroughly misconstrued' and the HC’s order was based upon an 'utter misconception of the law', stated the SC in its order. The impugned summonses have been issued by the ED under Section 50(2) of the PMLA, which gives the ED the power to summon any person whose attendance is considered necessary, either to give evidence or produce any record during the course of investigation or proceeding under the PMLA. Since some of the offences of the said FIRs are scheduled offences under PMLA, the same would be the investigation/proceeding under the PMLA, and the District Collectors or the persons to whom the summons are issued under Section 50(2) of the Act are obliged to respect and respond to the said summons. The Bench led by J Bela Trivedi also noted that very strange and unusual Writ Petitions have been filed by the State of Tamil Nadu along with the Additional Chief Secretary and District Collectors against the Directorate of Enforcement under Article 226 of the Constitution of India, before the High Court seeking relief, which would indirectly stall or delay the inquiry/investigation being made by the petitioner – ED based on the four FIRs registered for the various offences, some of which are scheduled offences under the PMLA. https://www.livelaw.in/pdf_upload/267520242024-02-27- 525030.pdf

Section 172 : Code of Criminal Procedure: Case Diary Shailesh Kumar v. State of U.P. 2024 INSC 143 Held: On 26 Feb 2024, the SC whilst acquitting the appellant on murder charges held that the General Diary entry cannot precede the registration of FIR, except in cases where preliminary inquiry is needed. Further the investigating agency, the prosecutor and the defence are expected to lend ample assistance to the court in order to decipher the truth. As the investigating agency is supposed to investigate a crime, its primary duty is to find out the plausible offender through the materials collected. It may or may not be possible for the said agency to collect every material, but it has to form its opinion with the available material. There is no need for such an agency to fix someone as an accused at any cost. It is ultimately for the court to decide who the culprit is. Section 145 and Section 161 of the Evidence Act on the one hand and Section 172(3) of CrPC on the other are to be read in consonance with each other, subject to the limited right conferred under sub-section (3) of Section 172 of CrPC. The rights of the accused (i) to cross-examine a police officer as to the recording made in the case diary, and (ii) to peruse the statement recorded in the case diary where the court uses a case diary for the purpose of contradicting a police officer, cannot be declined when the author of a case diary uses it to refresh his memory or the court uses it for the purpose of contradiction. Facts: In a murder case, neither First Information Report (FIR) had been registered nor noting had been made in the general diary and the investigation was triggered by the report from the hospital where the victim was taken. In fact, the available noting on the general diary did not disclose any offence committed on 21.06.1992, as per the statement of the witness. The FIR was curiously sent by post and, therefore, reached the jurisdictional magistrate days thereafter. The appellant was found and arrested at about 50-60 yards from the place of occurrence but no arrest memo has been prepared though an entry was made in the general diary. Recovery memo was made after recovery of the murder weapon. During trial, on a request made on behalf of the appellant, the general diary was summoned and perused by the trial court. The SC held that when the trial court perused the case diary for the purpose of contradicting the statement of a police officer, it ought not to have fixed the onus on the appellant even with respect to the corrections made in the case diary along with the missing pages, and that it ought not to have put the blame on the appellant that he maneuvered to do so in connivance with somebody, though the said correction could only help the case of the prosecution. The SC held that the Trial Court has failed to discharge its duty enshrined under Section 172(3) of CrPC read with Section 145 or Section 161, as the case may be, of the Evidence Act. Analysis: A case diary is maintained by an Investigating Officer during his investigation for the purpose of entering the day-to-day proceedings of the investigation. While doing so, the Investigating Officer should mandatorily record the necessary particulars gathered in the course of investigation with the relevant date, time and place. Under sub-section (1-A) and (1-B) of Section 172 of CrPC, the Investigating Officer has to mention, in his case diary, the statement of witnesses recorded during investigation with due pagination. Sub-section (1-A) and (1-B) were inserted by Act 5 of 2009 with effect from 31/12/2009. The object of these subsections is to facilitate a fair investigation since a statement made under Section 161 of CrPC is not expected to be signed as mandated by Section 162 of CrPC. While it is the responsibility and duty of the Investigating Officer to make a due recording in his case diary, there is no corresponding right under subsection (3) of Section 172 of CrPC for accused to seek production of such diaries, or to peruse them, except in a case where they are used by a police officer maintaining them to refresh his memory, or in a case where the court uses them for the purpose of contradicting the police officer. In such a case, the provision of Section 145 or Section 161, as the case may be, of the Evidence Act, shall apply. Law is quite settled that an improper maintenance of a case diary by the Investigating Officer will not inure to the benefit of the accused. Prejudice has to be shown and proved by the accused despite non-compliance of Section 172 of CrPC in a given case. However, this does not take away the mandatory duty of the police officer to maintain it properly. As the court is the guardian of truth, it is the duty of the Investigating Officer to satisfy the court when it seeks to contradict him. The right of the accused is, therefore, very restrictive and limited. It is also amply clear that a General Diary entry cannot precede the registration of FIR, except in cases where preliminary inquiry is needed. While an FIR is to be registered on an information disclosing the commission of a cognizable offence, so also a recording is thereafter required to be made in the case diary as held in Lalita Kumari v. Government of Uttar Pradesh & Others, (2014) 2 SCC 1. https://www.livelaw.in/pdf_upload/4846201114150150794finalord er26-feb-2024-524672.pdf

The Enemy Property Act, 1968 Lucknow Nagar Nigam & Ors. vs Kohli Brothers Colour Lab Pvt Ltd & Ors. (2024 INSC 135) The Insolvency and Bankruptcy Code, 2016 Greater Noida Industrial Development Authority V. Prabhjit Singh Soni 2024 SCC Online SC 122. Held: “Mere vesting of enemy property in the Custodian does not transfer ownership of the same from the enemy to the Union or to the Central Government; the ownership remains with the enemy but the Custodian only protects and manages the enemy property and in discharging his duties as the Custodian he acts in accordance with the provision of the Act and on the instructions or guidance of the Central Government.” The SC arrived at the following conclusions on 22 Feb: 1. The Custodian for Enemy Property in India, in whom the enemy properties vest, does not acquire ownership of the said properties. The enemy properties vest in the Custodian as a trustee only for the management and administration of such properties. 2. The Central Government may, on a reference or complaint or on its own motion initiate a process of divestment of enemy property vested in the Custodian to the owner thereof or to such other person vide Rule 15 of the Rules. Hence, the vesting of the enemy property in the Custodian is only as a temporary measure and he acts as a trustee of the said properties. 3. Hence, Union of India cannot assume ownership of the enemy properties once the said property is vested in the Custodian. This is because, there is no transfer of ownership from the owner of the enemy property to the Custodian and consequently, there is no ownership rights transferred to the Union of India. Therefore, the enemy properties which vest in the Custodian are not Union properties. 4. As the enemy properties are not Union properties, clause (1) of Article 285 does not apply to enemy properties. Clause (2) of Article 285 is an exception to clause (1) and would apply only if the enemy properties are Union properties and not otherwise. Facts: The subject property, once owned by the Raja of Mahmudabad who migrated to Pakistan in 1947, was deemed an Enemy Property under the relevant Act. The respondent-assessee occupied and utilized a part of this property for profit. A dispute arose when municipal tax notices were issued to the Custodian of the enemy property. The Custodian argued that, being appointed by the Union Government, the property's ownership belonged to the Union, making it exempt from municipal taxes under Article 285(1) of the Constitution. The Custodian's plea was accepted by the HC and an appeal was filed by the Lucknow Nagar Nigam (Lucknow Municipal Corporation) in the SC. Analysis: the High Court was wrong in holding that the respondent as occupier of the subject property, is not liable to pay any property tax or other local taxes to the appellant and the impugned order of the High Court was set aside. Consequently, any demand for payment of taxes under the Act of 1959 made and thereby paid by the respondent to the appellant-authority shall not be refunded. However, if no demand notices have been issued till date, the same shall not be issued but from the current fiscal year onwards (2024-2025), the appellant shall be entitled to levy and collect the property tax as well as water tax and sewerage charges and any other local taxes in accordance with law. https://main.sci.gov.in/supremecourt/2017/18248/18248_2017_1 2_1501_50594_Judgement_22-Feb-2024.pdf Held: On February 12, the SC held that a Court or a Tribunal, in absence of any provision to the contrary, has inherent power to recall an order to secure the ends of justice and/or to prevent abuse of the process of the Court. Neither the IBC nor the Regulations framed thereunder, in any way, prohibit, exercise of such inherent power. Rather, s.60(5)(c) which opens with a non-obstante clause, empowers the NCLT (the Adjudicating Authority) to entertain or dispose of any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under the IBC. Further, r.11 of the NCLT Rules, 2016 preserves the inherent power of the Tribunal. NCLT can recall Resolution Plan approval despite misclassification of Creditor’s claim under IBC on submission of proof. Facts: The appellant was a statutory authority constituted under Section 3 of the U.P. Industrial Area Development Act, 1976, which acquired land for setting up an urban and industrial township. In 2010, one of the acquired plots was allotted to the Corporate Debtor on lease for 90 years for a residential project by charging a premium to be payable in instalments between 2012 and 2020 after an initial moratorium of 24 months, subject to payment of interest as well as penal interest. The right to cancel the lease and resume the demised land was reserved. The Corporate Debtor defaulted in instalments and was thereby served with demand cum pre-cancellation notice, followed by initiating Corporate Insolvency Resolution Process (‘CIRP’), claims invited through public announcement. The appellant submitted a claim of Rs 43,40,31,951 towards premium instalments, and the claim was set up by the appellant as a financial creditor. However, the Resolution Professional treated the appellant as an operational creditor and accordingly called for the appellant to submit another form, which the appellant did not comply with.

IBC , 2016 Contd., In the meantime, the Committee of Creditors (‘CoC’) approved a plan and presented it to NCLT, which was approved on 4-08- 2020. The appellant, on 6-10-2020, filed an IA questioning the resolution plan, the RP’s decision to treat the appellant as an operational creditor, all further actions, and the recalling of NCLT’s order. The appellant, through two applications under Section 60(5) of IBC highlighted RP’s error in treating the appellant as an operational creditor which were rejected by NCLT, and appeal against the same was rejected by NCLAT. Analysis: In the present case, the grounds taken in the recall application qualified as valid grounds on which a recall of the order of approval could be sought. Thus, the recall application was maintainable notwithstanding that an appeal lay before the NCLAT against the order of approval passed by the Adjudicating Authority. Neither NCLT nor NCLAT while deciding the application/appeal of the appellant took note of the fact that the appellant was not served notice of the meeting of the Committee of Creditors (COC); the entire proceedings up to the stage of approval of the resolution plan were ex-parte to the appellant; the appellant had submitted its claim, and was a secured creditor by operation of law, yet the resolution plan projected the appellant as one who did not submit its claim; and the resolution plan did not meet all the parameters laid down in s.30(2) read with Regulations 37 and 38 of the CIRP Regulations, 2016. Also, the Recall Application was not barred by time and hence the impugned order was set aside. Resolution plan directed to be sent back to the COC for re-submission after satisfying the parameters set out by the Code. https://digiscr.sci.gov.in/html_view? dir=YWRtaW4vanVkZ2VtZW50X2ZpbGUvZWJvb2tzLzIwMjQvdm9 sdW1lIDIvUGFydCBJLzIwMjQyMjU4Mjg3MTcwNzk5NTM4Ni5odG1s &judgment_id=MzcwODA=

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