Ajay R. Singh, Advocate

1. Appointment – Rejection of candidature for failure to produce original character certificate – As per R.9 production of original certificates at the time of interview was not mandatory but directory: Bihar Civil Services (Judicial Branch) Recruitment Rules 1955

The Hon Court held that in the present case, the proof is available and true photocopies were on record. The appellants’ candidature could not have been rejected merely because the original was not produced before the Commission at the time of interview in particular when such requirement was not mandatory, in view of the manner in which the Rules are couched.

The Hon Court relied on the case of Charles K. Skaria and Others v. Dr. C. Mathew and Others (1980) 2 SCC 752: (AIR 1980 SC 1230) whereby  Justice Krishna Iyer speaking for the Court held that the factum of eligibility is different from factum of proof thereof. The Court held that if a person possesses eligibility before the date of actual selection, he cannot be denied benefit because its proof is produced later.

Sweety Kumari v. State of Bihar and others. AIR 2023 SUPREME COURT 4491.

2. Rejection of election petition – election petition contained allegation of corrupt practice, it was not supported by affidavit – Requirement to file affidavit is not mandatory and substantial compliance of provision is sufficient – Election petitioner was not liable to be rejected: CPC. of 1908, O.7, R.11 – Representation of the People Act 1951, Ss. 86 & 83(1)(c)

In the instant case, the election petition contained on affidavit and also a verification. In this very affidavit, the election petitioner has sworn on oath that the paragraph where he has raised allegations of corrupt practice are true to the best of his knowledge. Though there is no separate and a independent affidavit with respect to the allegations of corrupt practice, there is substantial compliance of the requirements under Section 83(1)(c) of the Act.

The Hon Court observed that the requirement to file an affidavit under the proviso to Section 83(1)(c) is not mandatory. It is sufficient if there is substantial compliance. As the defect is curable, an opportunity may be granted to file the necessary affidavit.

Thangjam Arunkumar v. Yumkham Erabot Singh and others. AIR 2023 SUPREME COURT 4531.

3. Auction sale – Right of redemption of mortgage – Right of the borrower to redeem secured assets would stand extinguished on the very date of publication of notice for public auction under R. 9(1): Securitisation and Reconstruction of financial Assets and Enforcement of security interest Act of 2002 Ss. 13(8) – Transfer of property Act of 1882, S. 60

In the instant case, borrowers and a guarantor failed to repay a bank loan of Rs. 123.8 crores under a lease rental discounting credit scheme. The bank initiated auction proceedings under the SARFAESI Act to recovery the debt but did not complete the auction Thereafter borrowers lodged a Securitisation Application with Debts Recovery Tribunal (DRT). Their objective was to contest a demand notice issued to them under S. 13(2) c the SARFAESI Act and to request the cancellation of the sale notice. Despite their efforts, the auction of the asset proceeded Subsequently, the borrowers approached the High Court, seeking the right to redeem the mortgage. The High Court granted their request, allowing them to redeem the mortgage even after the auction had taken place.

Held, the right of the borrower to redeem secured asset would stand extinguished there- under on the very date of publication of notice for public auction under R. 9(1) of Security Interest (Enforcement) Rules, 2002.

The SARFAESI Act is a special law containing an overriding clause in comparison any other law in force. S. 60 of the Transfer of Property Act 1882, is a general law vis-a-vis the amended S. 13(8) of the SARFAESI Act which is a special law. The right of redemption is clearly restricted till the date publication of the sale notice under the SARFAESI Act, whereas the said right continues under S. 60 of the Act 1882 till the execution of conveyance of the mortgaged property. While interpreting S. 13(8) vis-a-vis 60 of the Act 1882, an interpretation which furthers the said object and reasons should be preferred and adopted.

In accordance with the unamended S. 3(8) of the SARFAESI Act, the right of the borrower to redeem the secured asset was available till the sale or transfer of such secured asset. In other words, the borrower’s right of redemption did not stand terminated on the date of the auction sale of the secured asset itself and remained alive till the transfer was completed in favour of the auction purchaser, by registration of the sale certificate and delivery of possession of the se- cured asset. However, the amended provisions of S. 13(8) of the SARFAESI Act, make it clear that the right of the borrower to re- deem the secured asset stands extinguished hereunder on the very date of publication of the notice for public auction under R. 9(1) of the Rules of 2002. In effect, the right of redemption available to the borrower under the present statutory regime is drastically curtailed and would be available only till the date of publication of the notice under R. 9(1) of the Rules of 2002 and not till the completion of the sale or transfer of the secured asset in favour of the auction purchaser.

CELIR LLP v. Bafna Motors (Mumbai) Pvt Ltd and others. AIR 2023 SUPREME COURT 4568.

4. Will – Grant of probate – Execution of Will-Validity- Succession Act of 1925, Ss.276, 63 – Evidence Act of 1872, Sec.68

Will was duly executed by testator in favour of plaintiffs in presence of witnesses by his free will when he was in a sound disposing state of mind. Same was proved through testimony of one attesting witness. Said witness categorically stated that testator executed Will and, both he and testator signed Will in presence of each other. There was no evidence to conclude that testator was not in a fit or stable mental condition at time of execution of Will, or that Will was executed under suspicious circumstances, or due to undue influence. Relevant provisions were complied with. Grant of probate was proper.

Meena Pradhan and others v. Kamla Pradhan and onother. AIR 2023 SUPREME COURT 4680.

5. Secondary evidence – Admissibility – Evidence Act of 1872, Ss.77 79, 65(e), 74, 90, 110 Registration Act of 1908, S.57(5)

Document in question was registered sale deed falling within definition of a public document. Execution of sale deed was no disputed. Certified copy of sale deed would be admissible in evidence for purpose of proving contents of original document There was no reason to look for application of Ss.90 and 110 of Evidence Act. High Court erred in holding that certified copy was inadmissible in evidence owing to failure to produce original and failure to prove through an independent witness.

Appaiya v. Andimuthu Alias Thangapandi and others. AIR 2023 SUPREME COURT 4810.

6. Temporary injunction – Restraining defendant from interfering with possession of plaintiff over suit lands and from alienating same in favour of any third person – Possession of plaintiff was not sporadic or intermittent but was a settled possession for about 25 years : Civil P. C. of 1908, O.39 Rr.1, 2 – M. P. Land Revenue Code of 1959, S.250

It was observed that plaintiff is in possession of the suit lands. Such possession of plaintiff has been since a considerable period of time and since 1997 as contended by him. It cannot be said that he is a rank trespasser. The possession of plaintiff is not sporadic or intermittent but has been a settled possession for about 25 years. Such possession of plaintiff deserves to be protected whereas the Courts below have rejected his application by merely observing that he is an encroacher over the suit lands.

Though, defendant No.1 has instituted proceedings under Section 250 of the Code, 1959 before the Tehsildar but that by itself would not mean that plaintiff would be precluded from approaching the Civil Court for claiming declaration of his title to the suit lands and for protection of his possession during pendency of that suit. That is precisely what plaintiff has done. He has instituted an action for declaration of his title to the suit lands based on adverse possession and during pendency of that suit has claimed protection of his possession. It is only the Civil Court which would have the jurisdiction to decide the title of the parties and till decision of such a dispute it would be imperative for possession of plaintiff to be protected.

Bharta Rathore Patliya v. Gaja Rathore Patliya. AIR 2023 MADHYA PRADESH 171.

7. Constitution of India – Writ – Court’s ability and jurisdiction to appreciate facts Stated: Constitution of India, Arts. 32, 226, 142

Medical negligence – claim for compensation – Lack of due care from both military hospital and doctors was established – Link between blood transfusion and detections of infection of HIV was also established – appellant was entitled for compensation towards loss of earning – Compensation for mental agony – compensation for future care : Consumer Protection Act of 1986

Court’s ability and jurisdiction to appreciate facts, is really uncontestably; even in writ proceedings, the so- called ” hands off” bogey of “disputed questions of fact” which ordinarily constrain the courts, under Articles 32 and 226 from exercising jurisdiction, are to be seen in the context of the facts of each case. No doubt, usually the courts would not primarily exercise jurisdiction to enter into the arena of disputed facts. Yet, on occasions, the court has underlined that such an approach is dictated by considerations of convenience.

In the instant case, appellant who was in services of military was instructed to go for blood transfusion in course of his service. The appellant had gone for transfusion of one unit of blood at Military Hospital. After certain period of time he was found infected with HIV. The appellant believed that it was transmitted through transfusion of blood from military hospital. Appellant had made claim for compensation due to medical negligence.

Held, the appellant’s disability was attributable to the service owing transfusion of one unit of blood at Military Hospital and lack of due care from both military hospital and doctors.

The link between the blood transfusion and detection of infection of HIV was established.

The safeguards preceding safe transfusion to the appellant appeared to have been a given a go by.

CPL Ashish kumar Chauhan (Retd.) v. Commanding Officer and others. AIR 2023 SUPREME COURT 4935.

8. Cheque dishonour – Legally enforceable debt – Presumption of : Negotiable Instruments Act (26 of 1881), Ss. 138, 139 Burden of Proof – Concept explained- Evidence Act of 1872, Ss. 101, 102

Cheque issued by accused towards repayment of debt availed from complainant, was dishonoured . Accused neither replied demand notice nor presented any rebuttal evidence . Instead, accused claimed that blank cheque had been misused by complainant. Accused however failed to provide any substantial evidence or file a police complaint regarding alleged missing cheque . In contrast, case of complainant remained consistent and signature of accused on cheque was unchallenged, allowing presumption as legally enforceable debt to take effect High Courts erroneously questioned complainant’s lack of evidence to sup ort loan claim instead of focusing on whether accused had successfully discharged his burden to show absence of any debt at time of issuing cheque . Order of acquittal liable to be set aside.

Term ‘burden of proof’ is employed in two distinct senses. One pertains to the legal burden, which remains constant and unchanging throughout a trial, and is concerned with the obligation to establish the facts and contentions supporting a party’s case. The party failing to meet this burden would lose its case. The legal burden is generally evident from the pleadings, typically placed on the plaintiff or complainant to prove what they have asserted. In contrast, the evidential burden can shift during a trial based on the evolving balance of evidence, residing with the party that would fail if no evidence were presented by either side. This distinction is delineated in Section 101 and Section 102 of the Evidence Act. Presumptions, on the other hand, can be categorized into presumptions of fact and presumptions of law. Presumptions of fact involve logical inferences drawn from one fact to deduce the existence of other facts, and they can be refuted by opposing evidence. Presumptions of law may be either conclusive (irrebuttable) or rebuttable. Rebuttable presumptions of law are legal rules invoked by the Court when there is a lack of conflicting evidence. These presumptions further classify into discretionary (‘may presume’) and compulsive (‘shall presume’) presumptions, where the Court may choose to raise the former but must necessarily raise the latter when applicable. The Evidence Act encompasses these categories of presumptions: ‘may presume’ (rebuttable presumptions of fact), ‘shall presume’ (rebuttable presumptions of law), and conclusive presumptions (irrebuttable presumptions of law). When the Court opts to raise a ‘may presume’ presumption, the distinction between these categories vanishes, and the presumed fact stands until disproved.

Rajesh Jain v. Ajay Singh. AIR 2023 SUPREME COURT 5018.

9. Maintaining anonymity of victims of sexual offences – Whether the omission to abide by section 228A would subject the learned Magistrate to any criminal action under Section 228 A of the IPC?

The petitioner is the hapless victim of a sexual offence allegedly committed on her by a Police Officer. It transpires that the said accused obtained bail from this Court; and, on the allegation that, in spite of the conditions imposed, he had committed further offences, the prosecution and the petitioner moved independent applications before the learned Magistrate for cancellation of his bail. Pertinently, both these applications were dismissed by the learned Magistrate; but, while delivering judgment, due to an obvious omission, in the order relating to the application of the petitioner, her name and identity were not anonymised.

The court dismissed the present writ petition holding that, “it is indubitable that the learned Magistrate was acting in performance of judicial duties and the error committed by her, or her office, is that the order was not anonymised qua the petitioner. This Court cannot, therefore, find the request of the petitioner, for initiation of action against the learned Magistrate under Section 228 A of the IPC, to be worthy of grant, specifically within the ambit of the said Section, read with the provisions of the ‘Act’.”

The court further observed that, “it obligates this Court to declare without any ambiguity, that every Judge is to act fully conscious of the imperative requirement of maintaining anonymity of victims of sexual offences, particularly in relation to those enumerated in Section 228 A of the IPC. Many times, experience has shown that cause title of judgments are prepared by the offices of Courts concerned; while, only the judgments per se are corrected and verified by the learned Judicial Officers. The mounting number of cases adds to the problem and exacerbates mistakes; and obviously, therefore, this case should be an eye-opener to every such officer who discharges his/her duties under the ambit of penal provisions. This Court, therefore, suggests that, in matters like this, wherever petitions are filed by or against victims of sexual offences – as specified under Section 228 A of the IPC – Judges and Judicial Officers must initiate immediate action to anonymise the details, particularly their names and addresses, before continuing with consideration of the applications/cases; and if this is done at the inception, obviously, the final orders will also carry such anonymisation. This should be done and ensured to be done.”

XXXXX v. State Of Kerala WP(C) NO. 40709 OF 2023 date: 12/12/2023. (Kerala) (HC)

10. Testimony of a sole eyewitness who happens to be the most interested witness and having long enmity with the accused is to be examined with great caution

The court dismissed the present appeal and held that, “It may not be out of context to mention that the appellant/complainant, a sole eyewitness, happens to be the most interested witness being the father of the deceased and having long enmity with the group to which the accused persons belong, therefore, his testimony was to be examined with great caution and the High Court was justified in doing so and in doubting it so as to uphold the conviction on his solitary evidence. In the light of the evidence on record, both versions as was taken by the trial court and that by the High Court may appear to be the possible views. However, the conviction has to be based on the evidence which proves the accused guilty beyond reasonable doubt. The prosecution in this case has failed to prove the guilt of the accused both by circumstantial evidence and by means of evidence of the eyewitness. In respect of circumstantial evidence, the chain of events is not complete whereas the presence of eyewitness is also doubtful. Thus, we are of the opinion that the view taken by the High Court in extending the benefit of doubt to the accused persons appears to be the most plausible view.”

CHHOTE LAL v. ROHTASH & ORS. CRIMINAL APPEAL NO.2490 OF 2014, Dated 14/12/2023 (SC).

10. Whether all the matters pertaining to one FIR are listed before the same Judge?

The court stated that, “In view of the grant of permission to withdraw the special leave petition, we do not think it necessary to delve into the matter any further. However, we have to reiterate the concern of this Court on the lethargy in following the earlier orders in the matter of dealing with bail applications arising out of the same FIR to avoid conflicting decisions. We shall not be understood to have said that at all circumstances co-accused in such cases are invariably entitled to parity and that such entitlement is certainly dependent on various relevant facts and factors.”

The court further directed the Registrar (Judicial) of this Court to communicate the said order to the Registrar (Judicial) of the High Court of Allahabad. Further, the court observed that, “taking note of the fact that such situations are occurring in other High Courts as well, we are of the view that the Registrar (Judicial) of the Registry of this Court be directed to communicate this order along with a copy of the order dated 31.07.2023 in SLP (Crl.) No.7203 of 2023 to the Registrar (Judicial) of all the High Courts. On their receipt, they shall place the orders before the Hon’ble Chief Justice of the respective High Court.”

Rajpal v. State of Rajasthan Special Leave Petition (Crl.) No.15585 of 2023, Dated: 12/12/2023 (SC)

11. When Called Upon To Invoke Sec. 482 CrPC, High Courts Should Carefully Examine If Accusations Constitute Offence

The Supreme Court in a recent order observed that when the High Court was called upon to invoke power under Section 482 Cr.P.C to quash a criminal case, it was incumbent upon the High Court to consider the question whether the allegations would constitute the offence(s) alleged against the person-accused.

While setting aside an order of a High Court which denied to quash the criminal proceedings pending against a person-accused, the Supreme Court expressed dissatisfaction with the High Court’s order by noting that the ingredients necessary to constitute the offence under Sections 420, 406, 504, and 506 of the IPC are not made out against the accused-appellant.

The court allowed the appeal, and quashed the criminal case pending against the accused- appellant.

RAJARAM SHARMA v. THE STATE OF UTTAR PRADESH & ANR. CRIMINAL APPEAL NO. 63 OF 2024, Dated: 04/01/2024 (SC).

12. SARFAESI Act – Right Of Redemption Cannot Be Taken Away By Insufficient Notice:

The Allahabad High Court has held that right of redemption under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 is an important right which cannot be taken away or breached by the authorities by insufficient notice.

[Right of redemption allows an opportunity to the borrower to repay the entire dues and redeem the secured asset]

While observing that it is settled law that service of notice upon the borrower is mandatory under Rule 8 of the Security Interest (Enforcement) Rules 2002.

“Right of redemption is an important right available to a borrower, who is in default. Such important right cannot be taken away and any action taken in its breach cannot be approved of”

The Court observed that the date of auction being in knowledge is not sufficient if notice has not been served following due procedure prescribed under Rule 8 of the Security Interest (Enforcement) Rules, 2002.

Sharp Industries v. Bank of Maharashtra and 3 Others [SPECIAL APPEAL No. – 220 of 2023], Dated : 05/01/2022