On and from 1st April, 2017 vehicles that are not BS-IV compliant shall not be sold in India

Supreme Court  in the case of M.C. Mehta v. Union of India & Ors. [I.A.
Nos. 487/2017, 491/2017, 494/207, 489/2017, 495/2017 in Writ Petition (Civil)
No.13029 of 1985], issue pertaining to the sale and registration and therefore the
commercial interests of manufacturers and dealers of such vehicles that do not meet
the Bharat Stage-IV (‘BS-IV’) emission standards as on 1st April, 2017 was
examined keeping in mind the potential health hazard of such vehicles being
introduced on the road.

It was observed that “the number of such vehicles may be small compared to
the overall number of vehicles in the country but the health of the people is far, far
more important than the commercial interests of the manufacturers or the loss that
they are likely to suffer in respect of the so-called small number of such vehicles.”

While observing that the manufacturers of such vehicles were fully aware that
eventually from 1st April, 2017 they would be required to manufacture only BS-IV
compliant vehicles but for reasons that are not clear, they chose to sit back and
declined to take sufficient pro-active steps”, it was directed that: “(a) On and from 1st
April, 2017 such vehicles that are not BS-IV compliant shall not be sold in India by
any manufacturer or dealer, that is to say that such vehicles whether two wheeler,
three wheeler, four wheeler or commercial vehicles will not be sold in India by any
manufacturer or dealer on and from 1st April, 2017. (b) All the vehicle registering
authorities under the Motor Vehicles Act, 1988 are prohibited for registering such
vehicles on and from 1st April, 2017 that do not meet BS-IV emission standards,
except on proof that such a vehicle has already been sold on or before 31st March,
2017.”[On 29th March, 2017]

Though an arbitrator is specified in the agreement for arbitration, if circumstances so warrant, the Chief Justice or the designated Judge is free to appoint an independent arbitrator

Supreme court in the case of Union of India v. BESCO Ltd. [Civil Appeal
No.4483 of 2017], while examining the issue as to whether the Chief Justice of a
High Court or any person or institution designated by him, while exercising power
under Section 11(6) of the Arbitration and Conciliation Act, 1996 is bound to
nominate an arbitrator as specified in the agreement for arbitration, it was held that
“though an arbitrator is specified in the agreement for arbitration, if circumstances so
warrant, the Chief Justice or the designated Judge is free to appoint an independent
arbitrator, having due regard to the qualification, if any, and other aspects as
required under Section 11(8) of the Act.”[On 27th March, 2017]

Unless the Magistrate is satisfied that there is sufficient ground for proceeding with the complaint or sufficient material to justify the issue of process, he should not pass the order of issue of process.

Supreme Court in the case of K. Sitaram & Anr. v. CFL Capital Financial
Service Ltd. & Anr. [Criminal Appeal No.2285 of 2011], it was held that “when a
person files a complaint and supports it on oath, rendering himself liable to
prosecution and imprisonment if it is false, he is entitled to be believed unless there
is some apparent reason for disbelieving him; and he is entitled to have the persons,
against whom he complains, brought before the court and tried. The only condition
requisite for the issue of process is that the complainant’s deposition must show
some sufficient ground for proceeding.”
It was further held that “unless the Magistrate is satisfied that there is
sufficient ground for proceeding with the complaint or sufficient material to justify the
issue of process, he should not pass the order of issue of process. Where the
complainant, who instituted the prosecution, has no personal knowledge of the
allegations made in the complaint, the magistrate should satisfy himself upon proper
materials that a case is made out for the issue of process. Though under the law, a
wide discretion is given to magistrate with respect to grant or refusal of process,
however, this discretion should be exercised with proper care and caution.[On 21st March, 2017 ]

Eviction of a tenant can be maintained by one of the co-owners

 Supreme Court  in the case of Om Prakash & Anr. v. Mishri Lal (Dead)
Represented by his Lr. Savitri Devi [Civil Appeal No.4309 of 2017], it was held that
“a suit for eviction of a tenant can be maintained by one of the co-owners and it
would be no defence to the tenant to question the maintainability of the suit on the
ground that the other co-owners were not joined as parties to the suit. The judicially
propounded proposition is that when the property forming the subject matter of
eviction proceedings is owned by several co-owners, every co-owner owns every
part and every bit of the joint property along with others and thus it cannot be said
that he is only a part owner or a fractional owner of the property and that he can
alone maintain a suit for eviction of the tenant without joining the other co-owners if
such other co-owners do not object.” [On 21st March, 2017]

Place of arbitration determines the law applicable to arbitration and related matters and in pursuance arbitration agreement if the arbitration took place outside India Part-I of the Arbitration Act to be excluded.

Supreme court in the case of Imax Corporation v. M/s E-City Entertainment (I) Pvt. Ltd. [Civil Appeal No.3885 of 2017], while addressing the issue as to whether the seat of arbitration itself is a decisive factor to exclude Part-I of the Arbitration and Conciliation Act, 1996, it was held that “the relationship between the seat of arbitration and the law governing arbitration is an integral one.”
It was held that “the place of arbitration determines the law that will apply to the
arbitration and related matters like challenges to the award etc.” and “if in pursuance
of the arbitration agreement, the arbitration took place outside India, there is a clear
exclusion of Part-I of the Arbitration Act.”

[On 10th March, 2017]

Supreme Court directions speeding up disposal of cases of undertrials pending in subordinate courts and appeals pending in the High Courts.

SUPREME COURT in the case of Hussain and Anr. v. Union of India [Criminal
Appeal No.509 of 2017], the Chief Justices of all High Courts were asked to
forthwith take appropriate steps consistent with the directions of the Supreme Court
in earlier cases and Resolution of Chief Justices’ Conference and to have
appropriate monitoring mechanism in place on the administrative side as well as on
the judicial side for speeding up disposal of cases of undertrials pending in
subordinate courts and appeals pending in the High Courts. It was inter alia directed
as follows:-

(i) The High Courts may issue directions to subordinate courts that –

(a) Bail applications be disposed of normally within one week;
(b) Magisterial trials, where accused are in custody, be normally concluded within six
months and sessions trials where accused are in custody be normally concluded
within two years;
(c) Efforts be made to dispose of all cases which are five years old by the end of the
year;
(d) As a supplement to Section 436A, but consistent with the spirit thereof, if an
undertrial has completed period of custody in excess of the sentence likely to be
awarded if conviction is recorded such undertrial must be released on personal
bond. Such an assessment must be made by the concerned trial courts from time to
time;
(e) The above timelines may be the touchstone for assessment of judicial
performance in annual confidential reports.”

(ii) “The High Courts are requested to ensure that bail applications filed before them
are decided as far as possible within one month and criminal appeals where
accused are in custody for more than five years are concluded at the earliest”;

(iii) “The High Courts may prepare, issue and monitor appropriate action plans for
the subordinate courts”;

(iv) “The High Courts may monitor steps for speedy investigation and trials on
administrative and judicial side from time to time”;

(v) “The High Courts may take such stringent measures” as may be found necessary
in the light of judgment of this Court in Ex. Captain Harish Uppal case.[On 9th March, 2017]

An administrative circular issued by SEBI under Section 11(1) of the SEBI Act, 1992, can be subject matter of appeal under Section 15T of the said Act

Supreme Court in the case of National Securities Depository Ltd. v.
Securities and Exchange Board of India [Civil Appeal No.5173 of 2006], while
examining the question as to whether an administrative circular issued by SEBI
under Section 11(1) of the Securities Exchange Board of India Act, 1992, can be the
subject matter of appeal under Section 15T of the said Act, it was held that “it is
orders referable to Sections 11(4), 11(b), 11(d), 12(3) and 15-I of the Act, being
quasi-judicial orders, and quasi judicial orders made under the Rules and
Regulations that are the subject matter of appeal under Section 15T.” It was
observed that administrative orders such as circulars issued referable to Section
11(1) of the Act are outside the appellate jurisdiction of the Securities Appellate
Tribunal [On 7th March, 2017]

To send a reminder notice to the drawer of the cheque and such notice cannot be construed as an admission of nonservice of the first notice

In the case of N. Parameswaran Unni v. G. Kannan and Another [Criminal Appeal No.455 of 2006], it was held that generally there is no bar under the Negotiable Instruments Act, 1881 “to send a reminder notice to the drawer of the cheque and usually such notice cannot be construed as an admission of nonservice of the first notice”[On 1st March, 2017]

Imposition of exemplary costs is a necessary instrument to be deployed to weed out and to prevent the filing of frivolous cases

Supreme Court in the case of Dnyandeo Sabaji Naik and Anr. v. Mrs. Pradnya Prakash Khadekar and Ors [SLP (C) Nos. 25331-33 of 2015], a three Judge Bench observed that the Supreme Court must view with disfavour any attempt by a litigant to abuse the process.

While observing that Courts across the legal system – this Court not being an
exception – are choked with litigation and “frivolous and groundless filings constitute
a serious menace to the administration of justice” with the process of dispensing
justice being “misused by the unscrupulous to the detriment of the legitimate”, it was
held that “this tendency can be curbed only if courts across the system adopt an
institutional approach which penalizes such behavior. Liberal access to justice does
not mean access to chaos and indiscipline. A strong message must be conveyed
that courts of justice will not be allowed to be disrupted by litigative strategies
designed to profit from the delays of the law. Unless remedial action is taken by all
courts here and now our society will breed a legal culture based on evasion instead
of abidance. It is the duty of every court to firmly deal with such situations. The
imposition of exemplary costs is a necessary instrument which has to be deployed to
weed out, as well as to prevent the filing of frivolous cases. It is only then that the
courts can set apart time to resolve genuine causes and answer the concerns of
those who are in need of justice. Imposition of real time costs is also necessary to
ensure that access to courts is available to citizens with genuine grievances.
Otherwise, the doors would be shut to legitimate causes simply by the weight of
undeserving cases which flood the system.”[On 1st March, 2017]

The Advocate appellant could not be treated as gross negligent but was only one of negligence.

Supreme Court in the case of T.A. Kathiru Kunju v. Jacob Mathai & Anr.
[Civil Appeal No.3860 of 2007] wherein the respondent had lodged a complaint
before the Bar Council that he had engaged appellant as an Advocate to file a case
under the Negotiable Instruments Act, 1881 for bouncing of a cheque, but instead of
filing such a complaint, the appellant felt it apposite to file a complaint case under
Section 420 IPC, and also did not return the cheque to the respondent; the
Disciplinary Committee of the Bar Council of India had found the appellantAdvocate
guilty of gross negligence in discharge of his professional service to the
respondent. While setting aside the order of the Disciplinary Committee of the Bar
Council of India, it was held that the act of the appellant could not be treated to be in
the realm of gross negligence and was only one of negligence.[On 16th February, 2017]

Private individuals can be prosecuted by the Court on the ground that they have abetted the act of criminal misconduct falling under Section 13(1)(e) of PC Act 1988 committed by the public servant

Supreme Court  in the case of State of Karnataka v. Selvi J. Jayalalitha &
Ors. [Criminal Appeal Nos.300 – 303 of 2017], wherein charges were framed against
A1 – former Chief Minister of the State of Tamil Nadu and the co-accused viz. A2,
A3 and A4 (respondents), for commission of alleged offences punishable under
Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988
and further under Section 120-B and Section 109 of IPC, it was held that A1 to A4
had “entered into a conspiracy and in furtherance of the same, A1 who was a public
servant at the relevant time had come into possession of assets disproportionate to
the known sources of her income during the check period and had got the same
dispersed in the names of A2 to A4 and the firms & companies involved to hold
these on her behalf with a masked front.” Furthermore, it was held that “the charge
of abetment laid against A2 to A4 in the commission of the offence by A1 also
stands proved.”
It was held that as the sole public servant had died being A1 in this matter, and
appeals against her had abated, even then A2 to A4 “were liable to be convicted and
sentenced in the manner as has been held by the Trial Judge.” It was held that
“private individuals can be prosecuted by the Court on the ground that they have
abetted the act of criminal misconduct falling under Section 13(1)(e) of the 1988 Act
committed by the public servant” and furthermore, the reasoning given by the Trial
Court in respect of criminal conspiracy and abetment was correct “in the face of the
overwhelming evidence indicating the circumstances of active abetment and
conspiracy by A2 to A4 in the commission of the above offences under Section
13(1)(e) of the 1988 Act.” Having regard to the fact that the charge framed against
A2 to A4 was proved, the conviction and sentence recorded against them by the
Trial Court was restored in full.[14th February, 2017]

A trial Judge has immense responsibility to record the evidence in the prescribed manner in Section 309 of the CrPC

 In the case of Ajay Singh and Anr. and Etc. v. State of Chattisgarh and Anr. [Criminal Appeal Nos. 32-33 of 2017], it was observed that “a trial Judge should remember that he has immense responsibility as he has a lawful duty to record the evidence in the prescribed manner keeping in mind the command postulated in Section 309 of the CrPC and pronounce the judgment as provided under the Code. A Judge in charge of the trial has to be extremely diligent so that no dent is created in the trial and its eventual conclusion.”[6th January, 2017]

Where the Disciplinary Authority records a finding without any evidence or a finding which no reasonable person could have arrived at, the writ court would interfere

Supreme Court in the case of Allahabad Bank & Ors. v. Krishna Narayan
Tewari [Civil Appeal No.7600 of 2014], it was held that the though “it is true that a
writ court is very slow in interfering with the findings of facts recorded by a
Departmental Authority on the basis of evidence available on record”, “but it is
equally true that in a case where the Disciplinary Authority records a finding that is
unsupported by any evidence whatsoever or a finding which no reasonable person
could have arrived at, the writ court would be justified if not duty bound to examine
the matter and grant relief in appropriate cases. The writ court will certainly interfere
with disciplinary enquiry or the resultant orders passed by the competent authority
on that basis if the enquiry itself was vitiated on account of violation of principles of
natural justice, as is alleged to be the position in the present case. Non-application
of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons
in support of the conclusion arrived at by them are also grounds on which the writ
courts are justified in interfering with the orders of punishment.”

It was further held that “in cases where the High Court finds the enquiry to be
deficient either procedurally or otherwise the proper course always is to remand the
matter back to the concerned authority to redo the same afresh. That course could
have been followed even in the present case. The matter could be remanded back
to the Disciplinary Authority or to the Enquiry Officer for a proper enquiry and a fresh
report and order. But that course may not have been the only course open in a given
situation. There may be situations where because of a long time lag or such other
supervening circumstances the writ court considers it unfair, harsh or otherwise
unnecessary to direct a fresh enquiry or fresh order by the competent authority.”[2017]

The power of President under Article 123 of the Constitution and the Governor under Article 213 is legislative in character and is conditional in nature

SUPREME COURT in Krishna Kumar Singh & Anr. v. State of Bihar & Ors. [Civil Appeal No.5875 of 1994], a seven-judge Bench examined the power of the Executive to make law through ordinance, and inter alia held per majority, that the power conferred upon the President under Article 123 of the Constitution and the Governor under Article 213 is legislative in character and “is conditional in nature” as “it can be exercised only when the legislature is not in session and subject to the satisfaction of the President or, as the case may be, of the Governor that circumstances exist which render it necessary to take immediate action.”

also held “an Ordinance which is promulgated under Article 123 or
Article 213 has the same force and effect as a law enacted by the legislature but it
must (i) be laid before the legislature; and (ii) it will cease to operate six weeks after
the legislature has reassembled or, even earlier if a resolution disapproving it is
passed. Moreover, an Ordinance may also be withdrawn”. It was clarified that “the
Ordinance making power does not constitute the President or the Governor into a
parallel source of law making or an independent legislative authority” and that
“consistent with the principle of legislative supremacy, the power to promulgate
ordinances is subject to legislative control.”

further held that “the requirement of laying an Ordinance before
Parliament or the state legislature is a mandatory constitutional obligation cast upon
the government. Laying of the ordinance before the legislature is mandatory
because the legislature has to determine: (a) The need for, validity of and
expediency to promulgate an ordinance; (b) Whether the Ordinance ought to be
approved or disapproved; (c) Whether an Act incorporating the provisions of the
ordinance should be enacted (with or without amendments)”. “The failure to comply
with the requirement of laying an ordinance before the legislature is a serious
constitutional infraction and abuse of the constitutional process”. It was held that “repromulgation of ordinances is a fraud on the Constitution and a sub-version of
democratic legislative processes”.

There is nothing in the Contempt of Courts Act, 1971 or in Article 215 of the Constitution “which empowered High Court to initiate proceedings suo-motu for the contempt of a superior Court like the Supreme Court of India.”

Vitusah Oberoi and Ors. v. Court of its own motion [Criminal Appeal No. 1234 of 2007],

It was held that there is nothing in the Contempt of Courts Act, 1971 or in Article 215 of the Constitution “which can be said to empower the High Court to initiate proceedings suo-motu or otherwise for the contempt of a superior Court like the Supreme Court of India.” It was observed that “one of the recognised attributes of a court of record is the power to punish for its contempt and the contempt of courts subordinate to it. That is precisely why Articles 129 and 215, while declaring the Supreme Court and the High Courts as Courts of Record, recognise the power vested in them to punish for their own contempt. The use of the expression “including” in the said provisions is explanatory in character. It signifies that the Supreme Court and the High Courts shall, as Courts of Records, exercise all such powers as are otherwise available to them including the power to punish for their own contempt.”

It is necessary to provide for the required judge strength in every State district judiciary so as to facilitate the creation of infrastructure,

Imtiyaz Ahmad v. State of U.P. & Ors.[Criminal Appeal Nos. 254 – 262 of 2012]

Direction issued

(i) Until the National Court Management Systems Committee (NCMSC) “formulates
a scientific method for determining the basis for computing the required judge
strength of the district judiciary, the judge strength shall be computed for each state,
in accordance with the interim approach indicated in the note submitted by the
Chairperson, NCMSC”;
ii) “NCMSC is requested to endeavour the submission of its final report by 31
December 2017”;
iii) “A copy of the interim report submitted by the Chairperson, NCMSC shall be
forwarded by the Union Ministry of Law and Justice to the Chief Justices of all the
High Courts and Chief Secretaries of all states within one month so as to enable
them to take follow-up action to determine the required judge strength of the district
judiciary based on the NCMSC interim report, subject to what has been stated in this
judgment”;
iv) “The state governments shall take up with the High Courts concerned the task of
implementing the interim report of the Chairperson, NCMSC (subject to what has
been observed above) and take necessary decisions within a period of three months
from today for enhancing the required judge strength of each state judiciary
accordingly”;
v) “The state governments shall cooperate in all respects with the High Courts in
terms of the resolutions passed in the joint conference of Chief Justices and Chief
Ministers in April 2016 with a view to ensuring expeditious disbursal of funds to the
state judiciaries in terms of the devolution made under the auspices of the
Fourteenth Finance Commission”;

vi) “The High Courts shall take up the issue of creating additional infrastructure
required for meeting the existing sanctioned strength of their state judiciaries and the
enhanced strength in terms of the interim recommendation of NCMSC”;
vii) “The final report submitted by NCMSC may be placed for consideration before
the Conference of Chief Justices. The directions in (i) above shall then be subject to
the ultimate decision that is taken on receipt of the final report”; and
viii) “A copy of this order shall be made available to the Registrars General of each
High Court and to all Chief Secretaries of the States for appropriate action”.