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Posted On: 05-03-2025
58. (SC) (Decided on: 18.02.2025)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 432 – Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 473 – Constitution of India, Article 21 – Pre-mature release -- When the Presiding officer's opinion is sought, the Presiding Officer must submit his opinion at the earliest considering the fact that the issue of liberty of the convict is involved.

(Para 20)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 432 – Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 473 – Constitution of India, Article 21 – Pre-mature release -- Duty of Government -- It is the obligation of the appropriate Government to consider cases of all convicts for grant of premature release as and when they become eligible for consideration in terms of the policy -- It is not necessary for the convict or his relatives to make a specific application for grant of permanent remission -- District Legal Services Authorities shall maintain the relevant date of the convicts and as and when they become eligible to a consideration for grant of premature release, they shall do the needful -- The State Legal Services Authorities shall endeavour to create a portal on which the data as aforesaid can be uploaded on real time basis.

(Para 21(a)(g))

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 432 – Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 473 – Constitution of India, Article 21 – Pre-mature release – Policy for -- States and Union Territories that do not have a policy dealing with the grant of remission in terms of Section 432 of the CrPC or Section 473 of the BNSS to formulate a policy within two months.

(Para 21(b))

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 432 – Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 473 – Constitution of India, Article 21 – Pre-mature release – Speaking order -- Communication of -- Order granting or refusing the relief of permanent remission must contain brief reasons -- The order containing reasons should be immediately communicated to the convict through the office of the concerned prison -- The copies thereof should be forwarded to the Secretaries of the concerned District Legal Services Authorities -- It is the duty of the prison authorities to inform the convict that he has the right to challenge the order of rejection of the prayer for the grant of remission.

(Para 21(d))

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 432 – Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 473 – Constitution of India, Article 21 – Pre-mature release – Remission – Cancellation of – Opportunity of hearing -- An order granting permanent remission cannot be withdrawn or cancelled without giving an opportunity of being heard to the convict -- An order of cancellation of permanent remission must contain brief reasons.

(Para 21(e))

Posted On: 04-03-2025
60. (SC) (Decided on: 04.02.2025)

A. Transfer of Property Act, 1882 (4 of 1882), Section 58, 100 -- Equitable mortgage – Rights in personam -- Where ‘equitable mortgages’ have been created based on deposit of part-deeds or documents purporting title or evincing intention of parties to create an interest, all such deposits will be a valid mortgage in equity and the charge that might have been created prior in time will assume priority over any subsequent charges or mortgagors --  However, since such a mortgage is an ‘equitable mortgage’ any rights flowing from such mortgages are only of personal character and only rights in personam and as such will not operate against any strangers or subsequent incumbrancers unaware of such equitable mortgage -- Right of the lender to apportion or appropriate the subject property for repayment of loan only a right to take such an action rather than a right in the property itself.

(Para 43)

B. Transfer of Property Act, 1882 (4 of 1882), Section 58, 100 -- Equitable mortgage – Legal mortgage – Right of --  Legal mortgage would have assumed priority in charge, yet an equitable mortgage may still be enforceable as secondary charge, provided the other considerations such as notice of such mortgage is fulfilled.

(Para 53)

C. Transfer of Property Act, 1882 (4 of 1882), Section 58, 100 -- Equitable mortgage – Charge -- ‘equitable mortgages’ are very much recognized in India under the nomenclature of “charge” in terms of Section 100 of the Act, 1882, and the same will be enforceable as far as possible in terms of the procedure and provisions application to a simple mortgage except those without notice of such charge.

(Para 56)

Posted On: 22-02-2025
76. (SC) (Decided on: 12.02.2025)

A. Hindu Marriage Act, 1955 (25 of 1955), Section 11, 25 -- Void marriage – Maintenance to spouse – Permanent alimony – Right of -- A spouse whose marriage has been declared void u/s 11 of the 1955 Act is entitled to seek permanent alimony or maintenance from the other spouse by invoking Section 25 of the 1955 Act -- Whether such a relief of permanent alimony can be granted or not always depends on the facts of each case and the conduct of the parties -- Grant of relief u/s 25 is always discretionary.

(Para 28 a)

B. Hindu Marriage Act, 1955 (25 of 1955), Section 11, 12, 24 -- Void marriage – Voidable marriage – Maintenance pendente -- Even if a court comes to a prima facie conclusion that the marriage between the parties is void or voidable, pending the final disposal of the proceeding under the 1955 Act, the court is not precluded from granting maintenance pendente lite provided the conditions mentioned in Section 24 are satisfied -- While deciding the prayer for interim relief u/s 24, the Court will always take into consideration the conduct of the party seeking the relief, as the grant of relief u/s 24 is always discretionary.

(Para 28 b)

C. Hindu Marriage Act, 1955 (25 of 1955), Section 9, 10, 11, 12, 13, 23 – ‘decree in proceedings’ (Sec. 23) -- Interpretation of -- ‘decrees in proceedings’ will not include the decisions dismissing the petitions seeking reliefs u/s 9 to 13 -- Decrees passed u/s 11 to 13 bring about a change of status of the parties to the marriage -- Even a decree of restitution of conjugal rights brings about a change of status of the parties in case there is no restitution of conjugal rights within one year of a decree -- Even a decree of judicial separation u/s 10 brings about a change of status in the sense that a spouse who has got such a decree is no longer under an obligation to cohabit with his or her spouse.

(Para 17)

D. Hindu Marriage Act, 1955 (25 of 1955), Section 9, 10, 11, 12, 13 – Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), Section 18 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 144 -- Decline of decree under Hindu Marriage Act -- Remedy for maintenance -- When a decree is sought u/s 9 to 13 and is declined by the court, the remedy u/s 18 of the Hindu Adoption and Maintenance Act, 1956, remains available to the wife -- Even the remedy u/s 125 of the Code of Criminal Procedure, 1973 or Section 144 of the Bhartiya Nagarik Suraksha Sanhita, 2023 continues to be available.

(Para 19)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023), Section 144 -- Maintenance u/s 125 Cr.P.C. / 144 of BNSS – Nature of proceedings -- Proceedings u/s 125 of the CrPC are of a summary nature -- While deciding the applications u/s 125 of the CrPC, a summary procedure is required to be followed, and a detailed adjudication of the rights of the parties cannot be made -- The same is the legal position as regards the corresponding remedy u/s 144 of the BNSS.

(Para 21)

F. Hindu Marriage Act, 1955 (25 of 1955), Section 24, 9, 10, 11, 12, 13 – Maintenance pendentelite -- Conditions for applicability of Section 24 are: (i) There must be a proceeding under the 1955 Act pending and (ii) the court must come to a conclusion that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding.

(Para 25)

Posted On: 20-02-2025
81. (P&H HC) (Decided on: 27.01.2025)

A. Constitution of India, Article 14 -- Regularization Policy of the year 1996 dated 18.3.1996 (Haryana) – Regularization of daily wages employee -- Policy of regularization is applicable in rem and benefits admissible to each individual, who is similarly placed, had to be extended by the respondent-State without any discrimination -- Such employees ought not be forced to seek identical reliefs by way of filing separate writ petitions and that a holistic approach is required to be taken by the State Agencies as well as employer to extend the benefits to all similarly placed persons irrespective of the fact whether they have taken recourse to institution of a separate litigation or not.

(Para 23-25)

B. Constitution of India, Article 14 -- Regularization Policy of the year 1996 dated 18.3.1996 (Haryana) – Regularization of daily wages employee -- Dealy and laches – Arrears of monetary benefits – Restriction upon -- Certain other persons approached this Court for seeking the benefit in the year 2014, which such writ petitions were allowed in the year 2022 -- The issue of delay and laches/ estoppel did not stand in the way of extending the said benefits, the monetary benefits restricted to a period of 38 months prior to filing of the writ petition(s) to balance the equities – Petitioners held entitled for all consequential benefits including notional fixation of pay and seniority -- However, the financial benefits restricted upto 38 months prior to the filing of the present writ petition.

(Para 24-29)

Posted On: 20-02-2025
82. (SC) (Decided on: 18.02.2025)

Code of Criminal Procedure, 1973 (2 of 1974), Section 437 – Right to bail u/s 437 (6) of Cr.P.C. – Scope of -- Sub-section (2) of Section 437 of the Code can be divided in two parts -- The first part would indicate that it is mandatory, but in the next breath, the legislature has given discretion to the Magistrate not to grant bail by assigning reasons -- Provisions of Section 437(6) cannot be considered to be mandatory in nature and cannot be interpreted to grant an absolute and indefeasible right of bail in favour of accused -- Reasons for rejection of application under sub-section (6) have to be different and little more weighty than the reasons that may be relevant for rejection for bail at the initial stage. Following factors would be relevant:

1. Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused?

2. Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner?

3. Whether there are any chances of abscondence of the accused on being bailed out?

4. Whether accused was not in custody during the whole of the said period?

If the answer to any one of the above referred fact situations or similar fact situations is in affirmative then that would work as a fetter on the right that accrues to the accused under first part of sub-section (6) of Section 437 of the Code -- Right accrues to him only if he is in custody during the whole of the said period.

(Para 9-14)

Posted On: 17-02-2025
89. (SC) (Decided on: 13.02.2025)

A. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 161, 162 – Indian Evidence Act, 1872 (1 of 1872), Section 106, 145 -- Contradiction in statement – Circumstantial evidence – Acquittal -- Significant improvements and omissions in the evidence of PW-3 -- Omissions are so relevant that they become contradictions in view of the Explanation to Section 162 of the CR.P.C. -- Thus, it is very difficult to accept the testimony of PW-3 as reliable -- PW-1 is not a witness to the theory of last seen together -- Therefore, it is not possible to hold that the theory of last seen together was proved by the prosecution beyond a reasonable doubt -- When the prosecution case is based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established -- There must be a chain of circumstances so complete as not to leave any ground for any conclusion inconsistent with the innocence of the accused -- Two significant circumstances forming the chain have not been established -- Conviction and sentence set aside

(Para 10-12)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 161, 162 -- Indian Evidence Act, 1872 (1 of 1872), Section 145 -- Contradiction in statement – Proof of -- Portion of the prior statement shown to the witness for contradicting the witness must be proved through the investigating officer -- Unless the said portion of the prior statement used for contradiction is duly proved, it cannot be reproduced in the deposition of the witnesses -- The correct procedure is that the Trial Judge should mark the portions of the prior statements used for contradicting the witness -- The said portions can be put in bracket and marked as AA, BB, etc. -- The marked portions cannot form a part of the deposition unless the same are proved.

(Para 11)

Posted On: 11-02-2025
96. (SC) (Decided on: 07.11.2024)

A. Constitution of India, Article 309 -- Recruitment process -- Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies.

(Para 42(1))

B. Constitution of India, Article 14, 16, 309 -- Eligibility criteria – Change in midway – Permissibility of -- Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit -- Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness.

(Para 42(2))

C. Constitution of India, Article 309 – Select list – Right to be appointed -- Decision in K. Manjusree (2008) 3 SCC 512 lays down good law and is not in conflict with the decision in Subash Chander Marwaha, (1974) 3 SCC 220  -- Subash Chander Marwaha deals with the right to be appointed from the Select List whereas K. Manjusree deals with the right to be placed in the Select List -- The two cases therefore deal with altogether different issues.

(Para 42(3))

D. Constitution of India, Article 14, 16, 309 – Recruitment rules/ procedure – Deviation from – Permissibility of -- Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/ nonarbitrary and has a rational nexus to the object sought to be achieved -- Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility -- However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps.

(Para 42(4(5))

E. Constitution of India, Article 14, 16, 309 –  Select list – Right to be appointment -- Placement in the select list gives no indefeasible right to appointment -- State or its instrumentality for bona fide reasons may choose not to fill up the vacancies -- However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.

(Para 42(6)

Posted On: 10-02-2025
98. (SC) (Decided on: 10.12.2024)

A. Indian Evidence Act, 1872 (1 of 1872), Section 106 – Circumstantial evidence – Onus on accused -- Onus to explain would shift on to the accused only after the prosecution succeeds in establishing the basic facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused – If the prosecution fails to establish a complete chain of circumstances in the first place, then the accused's failure to discharge the burden under Section 106 of the Evidence Act becomes irrelevant.

(Para 17)

B. Indian Penal Code, 1860 (45 of 1860), Section 302 -- Indian Evidence Act, 1872 (1 of 1872), Section 106 – Acquittal -- Murder -- Circumstantial evidence – Last seen theory -- Onus on accused -- One of son of deceased’s testimony remotely suggest that any or all of the three accused persons were present in the house or that they had quarrelled with his mother when he left for school -- None of the neighbours had seen the accused present with deceased or that they were seen fleeing away on the fateful morning – Prosecution has not explained as to where the girl child was on the date of the incident -- Likewise, the prosecution also failed to provide any explanation, as to why the other son was not examined in evidence -- Failure to examine them in evidence calls for drawing of adverse inference thereby, further denting the credibility of the prosecution case -- Prosecution failed to prove the chain of incriminating circumstances against the accused-appellants by convincing evidence and beyond the shadow of doubt, so as to affirm their guilt -- Accused-appellants acquitted of the charges by giving them the benefit of doubt – Appeal allowed.

(Para 18-38)