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401. (SC) 14-07-2022

A. Constitution of India, Article 32, 226 -- Judicial review -- Action against employee -- Opinion of Authority – Doctrine of reasonableness -- Where an Act or the statutory rules framed thereunder left an action dependent upon the opinion of the authority concerned, by some such expression as ‘is satisfied’ or ‘is of the opinion’ or ‘if it has reason to believe’ or ‘if it considered necessary’, the opinion of the authority is conclusive, (a) if the procedure prescribed by the Act or rules for formation of the opinion was duly followed, (b) if the authority acted bona fide, (c) if the authority Itself formed the opinion and did not borrow the opinion of somebody else and (d) if the authority did not proceed on a fundamental misconception of the law and the matter in regard to which the opinion had to be formed -- Courts will not readily defer to the conclusiveness of the authority’s opinion as to the existence of matter of law or fact upon which the validity of the exercise of the power is predicated -- Doctrine of reasonableness thus may be invoked -- Where there are no reasonable grounds for the formation of the authority’s opinion, judicial review in such a case is permissible.

(Para 28-30)

B. Constitution of India, Article 32, 226 -- Judicial review -- Action against employee -- Opinion of Authority – Court can inquire whether the facts and circumstances so found to exist have a reasonable nexus with the purpose for which the power is to be exercised.

(Para 34)

C. Constitution of India, Article 32, 226 -- Judicial review -- Action against employee -- Opinion of Authority – Court can interfere if the constitutional or statutory term essential for the exercise of the power has either been misapplied or misinterpreted -- The Courts have always equated the jurisdictional review with the review for error of law and have shown their readiness to quash an order if the meaning of the constitutional or statutory term has been misconstrued or misapplied.

(Para 35)

D. Constitution of India, Article 32, 226 -- Judicial review -- Action against employee -- Opinion of Authority – It is permissible to interfere in a case where the power is exercised for improper purpose -- If a power granted for one purpose is exercised for a different purpose, then it will be deemed that the power has not been validly exercised.

(Para 36)

E. Constitution of India, Article 32, 226 -- Judicial review -- Action against employee -- Opinion of Authority – Grounds which are relevant for the purpose for which the power can be exercised have not been considered or grounds which are not relevant and yet are considered and an order is based on such grounds, then the order can be attacked as invalid and illegal -- On the same principle, the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question.’

(Para 37)

F. Constitution of India, Article 32, 226 -- Assam Rifles Regulation, 2016, Regulation 107(c), 108 – Assam Rifles Manual, Rule 24 – Four red ink entries – Discharge from service -- Entry 1 (1996) For staying back to take care of his ailing mother – ‘without sufficient cause over staying leave granted’. Sentenced to 14 days of rigorous imprisonment with deduction in salary -- Entry 2 (1998) For being on the way out to make a phone call, but stopped before he could leave the compound – “visited out of bound areas as specified in unit BRO Part I Ser No 202 dated 30 Aug 96 without permission from his superior officers”. Sentenced to 28 days of rigorous custody and 14 days of Military Custody -- Entry 3 (1999) For losing his luggage while coming back from home – “lost his identity card bearing machine No. 078550 by neglect the property of the Government issued to him for his use”. Sentenced to 28 days of rigorous imprisonment and 14 days of detention in AR custody -- Entry 4 (2004) For playing cards all alone by himself – ‘to obey unit standing orders and was found Gambling in unit line’. Sentenced to 28 days of rigorous imprisonment and 14 days of fine -- Having regard to the nature of the misconduct alleged against the appellant, ends of justice would be met if order of discharge set aside and treat the appellant to have been in service till the time, he could be said to have completed the qualifying service for grant of pension – Nothing on record to indicate that the nature of the misconduct leading to the award of four Red Ink entries was so unacceptable that the competent authority had no option but to direct his discharge to prevent indiscipline in the force -- Order of discharge against the appellant set aside -- Benefit of continuity of service for all other purpose shall be granted to the appellant including pension.

(Para 39, 40)

402. (SC) 14-07-2022

A. Constitution of India, Article 136 -- Criminal appeal -- Scope and width of appeal in Supreme court -- Following principles emerge:

(i) The powers of this Court under Article 136 of the Constitution are very wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.

(ii) It is open to this Court to interfere with the findings of fact recorded by the High Court if the High Court has acted perversely or otherwise improperly.

(iii) It is open to this Court to invoke the power under Article 136 only in very exceptional circumstances as and when a question of law of general public importance arises or a decision shocks the conscience of the Court.

(iv) When the evidence adduced by the prosecution falls short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.

(v) Where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record.

(Para 23)

B. Indian Evidence Act, 1872 (1 of 1872), Section 60 -- Evidence law -- Criminal case -- Appreciation of ocular evidence – Scope of – Appreciation of ocular evidence is a hard task -- There is no fixed or straight-jacket formula for appreciation of the ocular evidence -- The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:

I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.

II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.

XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.

(Para 27)

C. Evidence law -- Criminal case – Value of eyewitness – Assessment of -- In assessing the value of the evidence of the eye-witnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence -- In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence -- Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence -- Few contradictions in the form of omissions here or there is not sufficient to discard the entire evidence of the eye-witnesses.

(Para 28, 29)

D. Indian Evidence Act, 1872 (1 of 1872), Section 27 – Criminal case -- Discovery Panchnama – Reading over of it – Exhibition of – A panchnama which can be used only to corroborate the panch has to be read over to the panch and only thereafter it can be exhibited – If the panch has omitted to state something which is found in the panchnama, then after reading over the panchnama the panch has to be asked whether that portion of the panchnama is correct or not and whatever reply he gives has to be recorded – If he replies in the affirmative, then only that portion of the panchnama can be read into evidence to corroborate the substantive evidence of the panch – If he replies in the negative, then that part of the panchnama cannot be read in evidence for want of substantive evidence on record – It is, therefore, necessary that care is taken by the public prosecutor who conducts the trial that such a procedure is followed while examining the panch at the trial – It is also necessary that the learned trial judge also sees that the panchnama is read over the panch and thereafter the panchnama is exhibited after following the procedure as indicated above.

(Para 39)

E. Indian Evidence Act, 1872 (1 of 1872), Section 27 -- Discovery Panchnama/ Memo – Conditions necessary for the applicability of Section 27 of the Act are broadly as under:

(1) Discovery of fact in consequence of an information received from accused;

(2) Discovery of such fact to be deposed to;

(3) The accused must be in police custody when he gave informations and

(4) So much of information as relates distinctly to the fact thereby discovered is admissible.

Two conditions for application –

(1) information must be such as has caused discovery of the fact; and

(2) information must relate distinctly to the fact discovered.

(Para 42)

F. Indian Evidence Act, 1872 (1 of 1872), Section 27 – Discovery Panchnama/ Memo – Value of – Involvement or usage of weapon -- Statement does not suggest that the appellant indicated anything about his involvement in the concealment of the weapon -- Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon -- He could have derived knowledge of the existence of that weapon at the place through some other source also -- He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it.

(Para 45)

G. Indian Evidence Act, 1872 (1 of 1872), Section 27 -- Discovery Panchnama/ Memo – Recovery of weapon – Contents of Panchnama/ Memo – Proof of -- In the absence of exact words, attributed to an accused person, as statement made by him being deposed by the Investigating Officer in his evidence, and also without proving the contents of the panchnamas, the trial Court was not justified in placing reliance upon the circumstance of discovery of weapon.

(Para 47)

H. Indian Evidence Act, 1872 (1 of 1872), Section 8, 27 – Conduct of accused – Disclosure statement – Recovery of – Reliance upon -- While discarding the evidence in the form of discovery panchnama the conduct of the accused would be relevant u/s 8 of the Act -- Evidence of discovery would be admissible as conduct u/s 8 of the Act quite apart from the admissibility of the disclosure statement u/s 27 -- Although the conduct of an accused may be a relevant fact u/s 8 of the Act, yet the same, by itself, cannot be a ground to convict him or hold him guilty and that too, for a serious offence like murder -- Like any other piece of evidence, the conduct of an accused is also one of the circumstances which the court may take into consideration along with the other evidence on record, direct or indirect – Held, conduct of the accused alone, though may be relevant u/s 8 of the Act, cannot form the basis of conviction.

(Para 48-50)

403. (SC) 14-07-2022

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Constitution of India, Article 32, 226 – De facto complainant – Transfer of investigation to CBI -- If a citizen, who is a de facto complainant in a criminal case alleging commission of cognizable offence affecting violation of his legal or fundamental rights against high Government officials or influential persons, prays before a Court for a direction of investigation of the said alleged offence by the CBI, such prayer should not be granted on mere asking -- In an appropriate case when the Court feels that the investigation by the police authorities is not in a proper direction, and in order to do complete justice in the case and if high police officials are involved in the alleged crime, the Court may be justified in such circumstances to handover the investigation to an independent agency like the CBI.

(Para 44-46)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 482 – Constitution of India, Article 32, 226 – Chargesheet filed in criminal case – Transfer of investigation to CBI – Permissibility of -- After the filing of the charge sheet the court is empowered in an appropriate case to handover the investigation to an independent agency like the CBI.

(Para 46)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 340 -- Indian Penal Code, 1860 (45 of 1860), Section 191, 192, 193, 195 -- Perjury -- There are two conditions, on fulfillment of which, a complaint can be filed against a person who has given a false affidavit or evidence in a proceeding before a court -- The first condition being that a person has given a false affidavit in a proceeding before the court and, secondly, in the opinion of the court it is expedient in the interest of justice to make an inquiry against such a person in relation to the offence committed by him – There should be something deliberate -- A statement should be made deliberately and consciously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise.

(Para 72-78)

D. Indian Penal Code, 1860 (45 of 1860), Section 191 – Perjury -- False evidence -- Affidavit -- An affidavit is ‘evidence’ within the meaning of Section 191 of the IPC and a person swearing to a false affidavit is guilty of perjury.

(Para 79)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 340 -- Indian Penal Code, 1860 (45 of 1860), Section 191, 192, 193, 195 -- Perjury -- Before initiating the proceedings for perjury, the court concerned has to consider whether it would be expedient in the interest of justice to sanction such prosecution – Court has to see that the false statement was deliberate and conscious and the conviction is reasonably probable or likely -- In other words, before sanctioning the prosecution there must be a prima facie case of a falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.

(Para 79)

F. Code of Criminal Procedure, 1973 (2 of 1974), Section 340 -- Indian Penal Code, 1860 (45 of 1860), Section 211 – False charge of offence made with the intent to injure -- Meaning of charge -- Essential ingredients for invoking Section 211, I.P.C. are that the complaint must have falsely charged a person with having committed an offence -- Complainant, at the time of giving the complaint must have known that there is no just or lawful ground for making a charge against the person -- This complaint must have been given with an intention to cause injury to a person – A false "charge" in this Section must not be understood in any restricted or technical sense, but in its ordinary meaning, of a false accusation made to any authority bound by law to investigate it or to take any steps in regard to it, such as giving information of it to the superior authorities with a view to investigation or other proceedings, and the institution of criminal proceedings includes the setting of the criminal law in motion.

(Para 91)

G. Code of Criminal Procedure, 1973 (2 of 1974), Section 195, 340 -- Indian Penal Code, 1860 (45 of 1860), Section 211, 120-B – False charge of offence made with the intent to injure – FIR/ First information reports lodged at the different police stations -- At the end of the investigation, the investigating agency reached to the conclusion that the police force had no role to play, rather Naxals were responsible for the massacre – Prima facie, it could be said that false information was given by the first informants to the police as regards the alleged massacre by the police force – Essential ingredient of an offence u/s 211 IPC is to institute or cause, to be instituted any criminal proceeding against a person with intent to cause him injury or with similar intent to falsely charge any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge – “falsely charges” in this section, cannot mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial -- “To falsely charge” must refer to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not when seeking to prove the false charge by making deposition in support of the charge framed in that trial -- The words “falsely charges” have to be, read along with the expression “institution of criminal proceeding” -- Statement in order to constitute the “charges” should be made with the intention and object of setting criminal law in motion – Court left it to the State /CBI to take appropriate steps in accordance with law -- It shall not be limited only to the offence under Section 211 of the IPC -- A case of criminal conspiracy or any other offence under the IPC may also surface – Court left it to the better discretion of the State /CBI to act accordingly keeping in mind the seriousness of the entire issue -- Having regard to the facts of the present case the bar of Section 195 CrPC would not apply if ultimately the State/ CBI decides to take appropriate action in accordance with law.

(Para 90-96)

410. (P&H HC) 13-06-2022

A. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6 – Guardians and Wards Act, 1890 (8 of 1890) , Section 25 -- Constitution of India, Article 226 -- Custody of minor child – Writ of habeas corpus – Scope of -- Where the court is of the view that a detailed inquiry is required the Court may decline to exercise the extraordinary jurisdiction of a Writ Court and direct the parties to approach the Civil Court -- It is only in exceptional cases, where the rights of the parties to the custody of the minor will be determined in the exercise of extraordinary jurisdiction in a petition for Habeas Corpus -- Where in the circumstances of a particular case the ordinary remedy of the Civil Courts is either not available or is ineffective, a writ of Habeas Corpus is certainly maintainable, moreso, where it is shown that the detention of the minor child by a parent or others was illegal, without any authority of law and was also to the detriment of the child.

(Para 16)

B. Hindu Minority and Guardianship Act, 1956 (32 of 1956), Section 6, 13 – Guardians and Wards Act, 1890 (8 of 1890) , Section 25 -- Constitution of India, Article 226 -- Custody of minor child – Writ of habeas corpus – Paramount consideration ought to be the welfare of the child and due weight should be given to the child's comfort, contentment, health, education, intellectual development, familiar surroundings etc. -- Question of the welfare and interest of a minor child has to be judged on the consideration of the acknowledged superiority of the mother's love and affection for her children -- Girl child is less than five years old -- She was brought back to India by respondent no. 7 and 8 (grand-parents) on 23.1.2020 after which due to COVID-19 the petitioner-mother was unable to see her till March 2022 -- Even if the child had refused to go with the mother, that by itself does not have any significance as a child of such tender age does not know what is in her best interest -- Minor girl child may have developed a bond with the respondent nos.7 & 8 with whom she is residing for the last more than two years because of which she might have stated that she does not wish to go with her mother -- However, in the long term for the benefit and welfare of the child, by no stretch of imagination can it be said that the welfare of the child would be better taken care of by the grandparents viz-a-viz the mother -- Even otherwise, in the case of child who is less than 05 years old the custody should ordinarily be with the mother – Petition allowed, custody of the minor child ordered to be handed over to the petitioner (mother) immediately.

(Para 17-21)

434. (SC) 05-05-2022

A. Constitution of India, Article 14 -- Additional explanation -- State must not be allowed to bring in additional explanation to justify their actions when those are conspicuous by their absence, in the government decision.

(Para 26)

B. Constitution of India, Article 14, 16(1) – Doctrine of legitimate expectation -- Intelligible differentia -- Contention that the +2 lecturers have no semblance of similarity with the BSES, to enable assimilation into the BES -- No intelligible differentia could be pointed out by the state’s counsel to sustain such arbitrary classification between +2 lecturers and the BSES secondary level teachers, posted in government schools -- High Court declared that the +2 lecturers, both in the Government and the nationalized (taken over) secondary schools, appointed pursuant to Advertisement No.1/87, have always been part of the Bihar Subordinate Education Service (“BSES”) and thereby, they are entitled to be merged with the Bihar Education Service Class II (“BES”), pursuant to the Government decision dated 07.07.2006 – Manifest departure smacks of arbitrariness and the government action, to selectively protect the interest of the BES cadre, does not conform to rules of justice and fair play -- Where the substantive legitimate expectation is not ultra vires the power of the authority and the court is in a position to protect it, the State cannot be allowed to change course and belie the legitimate expectation of the respondents -- Regularity, Predictability, Certainty and Fairness are necessary concomitants of Government’s action and the Bihar government failed to keep to their commitment by the impugned decision, which was rightly interdicted by the High Court – Appeal by State dismissed.

(Para 2, 27, 33, 34, 38)

436. (SC) 02-05-2022

A. Constitution of India, Article 14 – Excess payment to employee – Recovery thereof -- If the excess amount was not paid on account of any misrepresentation or fraud or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable – Relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered -- If it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.

(Para 9)

B. Constitution of India, Article 14 – Excess payment to employee – Recovery thereof -- Not a case of misrepresentation or fraud played by the appellant-employee -- Appellant retired on 31.03.1999 -- Case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General – Held, attempt to recover the said increments after passage of ten years of his retirement is unjustified -- Appeal allowed, recovery notice set aside.

(Para 14-16)