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Monday, February 27, 2017

CITATIONS ON CROSS-EXAMINATION

CITATIONS ON CROSS-EXAMINATION

Party’s name Citation Strength

of Bench

Ratio laid down

Khemchand v. Union

of India

1958 SCR

1080

5 Judges Right of cross-examination essential

ingredient of natural justice.

Show Cause Notice must contain

(a) the charges leveled and

(b) the allegations based on which the

charges are levelled with material

which constitutes such allegations

Union of India v. T.R. Varma, AIR

1957 SC 882

Denial of opportunity of cross exam

fatal

State of Madhya

Pradesh v.

Chintaman Sadashiva

AIR 1961 SC

1623

Chinna Basappa v.

State of Mysore.

AIR 1961 SC

1070

- DO -

State of Bombay v.

Narul Latif Khan.

(1965) 3 SCR

135

Right of cross-examination and right to

adduce oral evidence.

Phulbari Tea Estate

v. Its Workmen.

AIR 1959 SC

1111

(Paras 5 and

7)

Right of cross-examination

Kanugo & Co. v.

Collector of Customs.

(1973) 2 SCC

438

3 Judges Right of cross-examination need not

be in the presence of the person from

whom seizure was made.

K.C. Tripathi v. State

Bank of India.

(1984) 1 SCC

43

3 Judges Non-compliance of natural justice must

cause some real prejudice – absence

of formal opportunity of cross-

examination did not vitiate the order.

Managing Director,

ECIL v. B. Karunakar

(1993) 4 SCC

77

Para 6

5 Judges Right of cross-examination – right to

be heard has to be read into the

statute.

Gajadhar Prasad v. Babu Bhakta

Rattan, AIR 1973 SC 2593.

The duty to observe natural justice is a

universal law applicable to all

situations.

Bidhan Nagar Salt Welfare

Association v. Central Valuation

Board, (2007) 6 SCC 668 (Paras 42,

43)

Exclusion of principles of natural

justice would render a statute

unconstitutional.

Meenglass Tea Estate v. Workmen, AIR 1963 SC

1719

Para 4

Natural justice requires that not only

the material based on which the

accusation or allegation is made has

to be furnished, but a fair opportunity

to contradict the same by leading

evidence by cross-examination has to

be given.

2

I) FUNDAMENTAL RIGHTS

WRIT PETITION WHERE EXISTENCE OF ALTERNATIVE REMEDY CANNOT BE A

BAR AND WHAT IS THE MEANING AND SCOPE OF JUDICIAL DISCRETION; IS THE

COURT BOUND TO INVESTIGATE WHETHER THERE IS VIOLATION OF

FUNDAMENTAL RIGHTS AND WHERE FUNDAMENTAL RIGHTS ARE VIOLATED

WHETHER RELIEF COULD BE DENIED.

Party’s name & Citation Strength

of Bench

Ratio laid down

Rashid Ahmed v. Municipal Board,

Khairana, AIR 1950 SC 163 (Para 6)

6 Judges Court is bound to entertain a Writ

when fundamental rights are infringed.

Daryao & Ors. v. State of U.P., AIR 1961

SC 1457

(by Gajendragadkar, J.)

5 Judges Granting of an appropriate relief under

Article 32 is not discretionary.

Citizens are entitled to appropriate

relief once it is shown that their

fundamental rights have been

infringed.

Further held: Right under Article 226

is also liable to be treated as one

under Article 32 when violation of

fundamental rights is complained.

Dismissal of a Writ Petition under

Article 226 not on merit but on the

ground that alternative remedy is

available will not bar a Writ under

Article 32.

A.V. Venkiteshwaran,

Collector of Customs v.

Ramachand Sobharaj

Wadhwani.

AIR 1961 SC

1506

(Paras 8 & 9)

5 Judges Alternative remedy is no bar.

Certiorari will lie. Para

Meenglass Tea Estate

v. Workmen

AIR 1963 SC

1719

Para 4

Natural justice requires that not only

the material based on which the

accusation or allegation is made has

to be furnished, but a fair opportunity

to contradict the same by leading

evidence by cross-examination has to

be given.

Kharak Singh v. State of Uttar Pradesh,

AIR 1963 SC 1295

(Para 12, last)

6 Judges Where fundamental rights are

infringed, it is not only the right but the

duty of the Court to afford relief.

Joseph Pothen v. State of Kerala, AIR

1965 SC 1514

5 Judges Right under Article 226 is also liable to

be treated as one under Article 32

when violation of fundamental rights is

complained. Dismissal of a Writ

Petition under Article 226 not on merit

but on the ground that alternative

remedy is available will not bar a Writ

under Article 32.

State of Orissa v. Dr. (Miss) Binapani Dei,

AIR 1967 SC 1269

Even administrative orders involving

civil consequence have to be passed

by observing principles of natural

justice.

3

Baburam Prakashchandra Maheshwari v.

Antarin Zilla Parishad, AIR 1969 SC 556

(Paras 3 & 4)

3 Judges Distinction between Writ of certiorari

and Writ of mandamus made; where a

Writ of certiorari is sought, plea of

alternative remedy cannot be raised at

all.

Nawabkhan v. State of Gujarat, AIR 1974

SC 1471

(Krishna Iyer, J.)

DB An order passed in violation of the

doctrine of audi alteram partem is a

nullity and such violation can

constitute no offence as the order

being void from its inception was non-

existent in the eye of law. The

question whether a citizen affected by

an illegal act can ignore and disregard

it with impunity on the self-determined

voidance of the order, not answered

and is left open.

Indira Gandhi v. Raj Narain, AIR 1975 SC

2299

Natural justice ought to be observed

even if the statute is silent.

Ridge v. Baldwin, 64 Appeal Cases 40 Violation of natural justice even in an

administrative action of dismissal of a

public servant will render the order

void ab initio.

Tulsiram Patel v. Union of India, AIR 1985

SC 1416

5 Judges Even where the constitutional

provision Article 311(2) expressly

excludes application of natural justice,

the principles of natural justice need to

be observed, unless such application

is not practically possible.

Rungta Sons Pvt. Ltd.

v. Collector of

Customs,

Visakapatinam, 1986

(23) ELT 14 (Cal)

Non-compliance of direction to pre-

deposit penalty will not be a bar in

challenging the entire order on the

ground of nullity.

An order which is null and void for

violation of interests of justice cannot

be got rid of its invalidity by approval

by an appellate body.

Shyam Kishore & Ors. v. Municipal

Corporation of Delhi, (1993) 1 SCC 22 3 Judges - do -

Whirlpool Corporation

v.

Registrar of Trade

Marks.

(1998) 8 SCC 1

(Para 7)

2 Judges - do -

Carl Steel & Anr. v.

State of Bihar

AIR 1951 SC

1615

(Paras 11 & 12)

5 Judges (Not exactly ideal for citing during

hearing, for the judgment is too

lengthy and not very precise on the

point)

Thansingh Nathmal v.

Superintendent of

Taxes.

AIR 1964 SC

1419

(Para 7)

5 Judges Existence of alternative remedy is a

ground on which writ could be denied

and the Petitioner could be relegated

to alternative remedy.

4

Dwarkaprasad Agarwal

v. B.D. Agarwal

(2003) 6 SCC

230

Right for a fair trial by impartial and

independent Tribunal is a fundamental

right.

Special Director v.

Mohd. Gulam.

AIR 2004 SC

1467

Scope of Article 226 where Show

Cause Notice issued.

Rungta Sons Pvt. Ltd.

v. Collector of

Customs,

Visakapatinam, 1986

(23) ELT 14 (Cal)

Violation of natural justice at initial

stage not cured till final stage – order

liable to be set aside under Article

226. Therefore, even after filing a

statutory appeal, remedy under Article

226 could be sought.

R v. Cheltenham Commissioners, (1841) 1

Q.B. 467.

An appeal does not lie unless it be

expressly given by statute, but

certiorari always lies unless it be

expressly taken away by statute.

Province of Bombay v. Khushaldas S.

Advani, AIR 1950 SC 222.

Same ratio.

Lt. Col. Khajoor Singh Vs. UOI & Anr., AIR

1961 SC 532

The word ‘Authority’ includes the

Government. Neither the location of

affected person nor the place of cause

of action determines the jurisdiction.

Location or seat of Central

Government determines the

jurisdiction. Concept of functioning of

Government cannot be introduced.

Power of the High Courts discussed

Election Commission of India Vs.

S.Venkata Rao, AIR 1953 SC 210

Popcorn Entertainment & Anr. Vs. City

Industrial Development Corporation & Anr.,

(2007) 9 SCC 593

Fundamental rights

Maintainability of Writ Petition

Reliance Petrochemicals Ltd. Vs.

Proprietors of Indian Express Newspapers,

Bombay Pvt. Ltd., (1988) 4 SCC 592.

Fundamental rights

Foreign decisions are not binding, but

only have persuasive value –

discussed.

State of U.P. v. Raj Narain & Ors., AIR

1975 SC 865.

Right to information is a fundamental

right.

Indian Express Newspapers (Bombay) Pvt.

Ltd. & Ors. Vs. UOI & Ors., (1985) 1 SCC

641.

MJN’s Note:

Many statutes in England contain

specific clauses whereunder the

remedy of certiorari is expressly taken

away, e.g. Section 262 of Public

Health Act of 1875, Section 156 of

Railways Clauses Consolidation Act,

1845 etc. But there is a qualification:

Even such statutory exclusion of

certiorari will not bar the remedy of

certiorari where there is substantial

5

want of jurisdiction.

6

II) COULD AN INNOCENT MAN BE PUNISHED FOR A TECHNICAL OFFENCE

WHERE MENS REA IS PRESUMED?

Party’s name Citation Strength

of

Bench

Ratio laid down

Dwarkanath v.

Municipal Corporation

of Delhi.

(1971) 2 SCC

314 3 Judges

Union of India v.

Mohibali Nasar.

1992(59) ELT

403 (Bombay)

Though the law could presume guilty

mental state, once the accused is

able to prove that he had acted

innocently, even if there is technical

violation, no punishment could be

imposed.

(A contrary Supreme Court judgment

by Shri Justice Laxmanan in a matter

relating to SEBI violation has been

delivered in 2003). Find out

Kishan Gopal

Sharma v.

Government of Delhi

(1996) 4 SCC

513

Technical violation of Prevention of

Food Adulteration Act – criminal

complaint quashed.

Canara Bank v.

Dubashis Das.

(2003) 4 SCC

557

Technical and innocent offence

AIR 1973 SC

2309

AIR 1966 SC 43

AIR 1965 SC

722

7

III) UNDUE HARDSHIP/PRE-DEPOSIT.

Party’s name Citation Strength

of

Bench

Ratio laid down

Wire Netting Store v.

Regional Provident

Fund Commissioner.

1981 Lab IC

1015

Provident Fund Act struck down as it

did not provide for an appeal against

an order imposing damages. (check

whether any appeal was filed in

the Supreme Court)

Asstt. Collector of

Central Excise v.

Dunlop India Ltd.

1985 (19) ELT

22 (SC)

3 Judges Government cannot be run on Bank

Guarantees, but needs liquid cash.

The judgment deals with only

taxation and revenue and not

penalties. Therefore, could be

distinguished as Government cannot

be expected to run on revenue from

penalties.

Vijay Prakash Mehta

v. Collector of

Customs.

(1988) 4 SCC

402

Shyam Kishore & Ors. v. Municipal

Corporation of Delhi

(1993) 1 SCC 22

(Para 39)

3 Judges Question whether imposition of the

condition which makes right of

appeal illusory can be valid and

needs careful consideration in an

appropriate case. The question,

therefore, remains res integra.

Shrikrishna v. Union

of India

(1998) 104 ELT

325 (Delhi)

Even where there is a strong prima

facie case and is likely to be

exonerated, still pre-deposit ought to

be made.

Alpha Detergents Pvt. Ltd. v.

Commissioner of Excise.

JT (2000) 8 SC 151

(A classic example where

requirement of pre-deposit waived

without spelling out any reason)

2000 (118) ELT

553 (SC)

- do -

Bhavya Apparel v. Union of India

(2007) 10 SCC 129

Non-compliance with the order of the

Tribunal to pre-deposit will not lead to

automatic dismissal of the appeal.

(In my opinion, the issue has not

been answered either way).

AIR 1961 SC

1480

(Para 12)

“Shall” does not always mean

imperative; it may mean “may” also.

Benaravals Ltd. v.

Commissioner of

Central Excise

(2006) 13 SCC

347

Where denial of interim relief may

lead to public mischief, grave and

irreparable private injury or shake a

citizen’s faith in the impartiality of the

public administration, interim relief be

8

given.

Sangfroid Remedies v.

Union of India

1998 (103) ELT 5 (SC)

Ruby Rubber Industries v.

Commissioner of Central Excise.

1998 (104) ELT 330 (Calcutta).

Ex-parte order; pre-deposit would lead

to hardship; impugned order set aside

and matter remanded.

On the question of waiver of pre-

deposit, prima facie case does not

mean, one must have a guilt-edge case

which is bound to succeed.

Benaravals Ltd. v.

Commissioner of

Central Excise

(2006) 13

SCC 347

Where denial of interim relief may lead

to public mischief, grave and irreparable

private injury or shake a citizen’s faith in

the impartiality of the public

administration, interim relief be given.

Union of India v.

Jesus Sales

Corporation.

AIR 1996 SC

1509

2

Judges

(This judgment runs contrary to Kraipak

and Maneka Gandhi cases, where right

to hearing was held to be mandatory).

AIR 1984 SC

653

AIR 1985 SC

61

AIR 1985 SC

330

9

IV) PRE-DEPOSIT OF PENALTY

Party’s name Citation Strength

of

Bench

Ratio laid down

Union of India v.

Jesus Sales

Corporation.

AIR 1996 SC

1509

2 Judges (This judgment runs contrary to Kraipak

and Maneka Gandhi cases, where right

to hearing was held to be mandatory).

Sangfroid Remedies

v.

Union of India

1998 (103)

ELT 5 (SC)

Ex-parte order; pre-deposit would lead

to hardship; impugned order set aside

and matter remanded.

Ruby Rubber

Industries v.

Commissioner of

Central Excise.

1998 (104)

ELT 330

(Calcutta).

On the question of waiver of pre-

deposit, prima facie case does not

mean, one must have a guilt-edge case

which is bound to succeed.

Shrikrishna v. Union

of India

(1998) 104

ELT 325

(Delhi)

Even where there is a strong prima

facie case and is likely to be

exonerated, still pre-deposit ought to

be made.

Benaravals Ltd. v.

Commissioner of

Central Excise

(2006) 13

SCC 347

Where denial of interim relief may lead

to public mischief, grave and

irreparable private injury or shake a

citizen’s faith in the impartiality of the

public administration, interim relief be

given.

Aluminium

Corporation of India

v. C. Balakrishnan.

1959 Income

Tax Reports,

Vol. 37, page

267.

Requirement of pre-deposit even when

there is a prima facie case amounts to

undue hardship and not merely

financial hardship.

Tata Iron v.

Commissioner of

Appeal.

1998 (98) ELT

350 (Calcutta)

Requirement of pre-deposit even when

there is a prima facie case amounts to

undue hardship and not merely

financial hardship.

Sangfroid Remedies

v.

Union of India

1998 (103)

ELT 5 (SC)

Ex-parte order; pre-deposit would lead

to hardship; impugned order set aside

and matter remanded.

10

V. NATURAL JUSTICE, - SHOW CAUSE NOTICE MUST CONTAIN (A) THE

CHARGES LEVELED AND (B) THE ALLEGATIONS BASED ON WHICH THE

CHARGES ARE LEVELLED WITH MATERIAL WHICH CONSTITUTES SUCH

ALLEGATIONS

CROSS-EXAMINATION

Party’s name Citation Strength

of

Bench

Ratio laid down

Khemchand v. Union

of India

1958 SCR

1080

5 Judges Right of cross-examination essential

ingredient of natural justice.

Show Cause Notice must contain

(a) the charges leveled and

(b) the allegations based on which the

charges are levelled with material

which constitutes such allegations

Union of India v. T.R. Varma, AIR 1957

SC 882

Denial of opportunity of cross exam

fatal

State of Madhya

Pradesh v. Chintaman

Sadashiva

AIR 1961 SC

1623

Chinna Basappa v.

State of Mysore.

AIR 1961 SC

1070

- DO -

State of Bombay v.

Narul Latif Khan.

(1965) 3 SCR

135

Right of cross-examination and right to

adduce oral evidence.

Phulbari Tea Estate v.

Its Workmen.

AIR 1959 SC

1111

(Paras 5 and

7)

Right of cross-examination

Kanugo & Co. v.

Collector of Customs.

(1973) 2 SCC

438

3 Judges Right of cross-examination need not be

in the presence of the person from

whom seizure was made.

K.C. Tripathi v. State

Bank of India.

(1984) 1 SCC

43

3 Judges Non-compliance of natural justice must

cause some real prejudice – absence

of formal opportunity of cross-

examination did not vitiate the order.

Managing Director,

ECIL v. B. Karunakar

(1993) 4 SCC

77

Para 6

5 Judges Right of cross-examination – right to be

heard has to be read into the statute.

Gajadhar Prasad v. Babu Bhakta

Rattan, AIR 1973 SC 2593.

The duty to observe natural justice is a

universal law applicable to all

situations.

Bidhan Nagar Salt Welfare Association

v. Central Valuation Board, (2007) 6

SCC 668 (Paras 42, 43)

Exclusion of principles of natural justice

would render a statute unconstitutional.

11

VI. SPEAKING ORDER/COMMUNICATION OF DECISION

Harinagar Sugar Mills Ltd v. Shyam

Sunder Jhunjhunwala, AIR 1961 SC

1669

Bhagat Raja v. Union of India, AIR

1967 SC 1606

Siemens Engineering v. Union of India,

AIR 1976 SC 1785

Travancore Rayon Ltd. v. Union of

India, 1978 ELT (J) 738

Liberty Oil Mills v. Union of India, AIR

1984 SC 1271

Raipur Development Authority v.

Chokhamal Contractors, AIR 1990 SC

1426

S.N. Mukherjee v. Union of India, AIR

1990 SC 1984

Bidhan Nagar Salt Welfare Association

v. Central Valuation Board, (2007) 6

SCC 668

Non speaking order, a nullity.

Speaking order a must. (Based on the

observations in paragraph 6 of the

judgment only SEGAT was constituted,

bringing an end to Government hearing

appeals of Customs and Excise

matters.

Speaking order a must, if not it is a

nullity.

If a statute does not provide an

opportunity of hearing, it is

unconstitutional.

Reasons must be recorded except in

cases where the requirement is

dispensed with expressly or by

necessary implication.

12

VII. SHOW CAUSE NOTICE MUST CONTAIN (A) THE CHARGES LEVELED AND (B)

THE ALLEGATIONS BASED ON WHICH THE CHARGES ARE LEVELLED WITH

MATERIAL WHICH CONSTITUTES SUCH ALLEGATIONS

Surath Chandra

Chakravarty V. The State

of West Bengal

AIR 1971 SC

752

Charge should not be vague

(party’s

name)

AIR 1980 SC

1157

(Para 5)

Show Cause Notice ought to be

issued only on material and judicial

application thereof. See also Pepsi

case by Sujata Manohar, J.

R.B. Sriram Durgaprasad

v. Settlement

Commission.

(1989) 1 SCC

628

(Para 7)

Show Cause Notice ought to be

issued only on material and judicial

application thereof.

Board of Technical

Education, U.P. v.

Dhanwantari Kumar.

AIR 1991 SC

271

3

Judges

Vague notice;

no opportunity to defend.

Rajendra Singh v. State

of Madhya Pradesh.

(1996) 5 SCC

460

It is important to establish that

violation of natural justice has

resulted in loss or prejudice.

Sangfroid Remedies v.

Union of India

1998 (103)

ELT 5 (SC)

Ex-parte order; pre-deposit would

lead to hardship; impugned order set

aside and matter remanded.

Food Corporation of India

v.

State of Punjab.

(2001) 1 SCC

291

Notice vague, vitiates the

proceedings.

Canara Bank v. Dubashis

Das.

(2003) 4 SCC

557 Also see

2001(1)SCC

182

Notice should be clear and precise

so as to apprise the party

determinatively the case he has to

meet. (by Shri Justice Arijit Pasayat.

A lengthy judgment with lot of

academic discussion)

Indian Railway

Construction Co. v. Ajay

Kumar.

(2003) 4 SCC

579

Natural justice and mala fides

discussed.

State of U.P. v. C.F.

Sharma

1967(3) SCR

848

13

VIII. RIGHT OF HEARING TO BE READ INTO THE STATUTE – RIGHT FOR FAIR

TRIAL

Punjab National Bank v. Kunjbehari Misra,

AIR 1990 SC 2713 (Para 19)

3

Judges

Right of hearing has to be read into

the Regulations.

Managing Director, ECIL, Hyderabad v. B.

Karunakar, (1993) 4 SCC 727

5

Judges

Mohinder Singh Gill v. Chief Election

Commissioner, (1978) 1 SCC 405

5

Judges

Right of hearing – distinction

between administrative and quasi-

judicial functions no longer relevant.

Rex v. Sussex Justices; Ex-parte Mc Carthy,

1924-1 KB 256

Distinction between judicial and

administrative functions.

Jamaluddin Ahmed v. Abu Sale Najmuddin,

2003(4) SCC 257.

-do-

All India Judges’ Association v. Union of

India, (1992) 1 SCC 119.

State of U.P. v. Batuk Deopati Tripathi,

(1978) 2 SCC 102

A.K. Kraipak & Ors v. Union of India & Ors.,

AIR 1970 SC 150

Bias – Right of Hearing

Cooper v. The Board of Works for the

Wandsworth District, Reported at (1893) 14

CBNS 180

A statute which excludes

observance of natural justice is

unfair. The ratio of this case is

analogous to the one laid down by

the supreme Court in Olga Tellis’s

case wherein the Court did not strike

down the statute which permitted

eviction of pavement dwellers

without notice as one requiring

notice and hearing.

Radheshyam v. State of U.P., AIR 1959 SC

107

State of Orissa v. Dr. (Miss) Binapani Dei,

AIR 1967 SC 1269

Indira Gandhi v. Raj Narain, AIR 1975 SC

2299

Natural justice ought to be observed

even if the statute is silent.

R v. University of Cambridge, (1723) 1 St.

757

(In this case, Lord ___, by reference

to the book of Genesis in Bible, held

that notice and hearing are

inviolable).

Nally Bharat Engineering Co. Ltd. v. State of

Bihar, 1990 (2) SCC 48

Where natural justice is violated,

proof of prejudice caused is not

required.

O.P. Gupta v. Union of India, AIR 1987 SC

2257

-Do-

14

Shridhar v. Nagarpalika, Jaipur, AIR 1990

SC 307

Rustom Cavasjee Cooper v. Union of India,

AIR 1970 SC 564

Audi alteram partem

Swadeshi Cotton Mills v. Union of India,

(1981) 1 SCC 664

3

Judges

Right of hearing.

Yoginath Bagde v. State of Maharashtra,

(1999) 7 SCC 739 (Para 23)

Where the statute is silent as to the

obligation to afford a hearing to the

party affected, such right has to be

read into the statute.

Liberty Oil Mills v. Union of India, AIR 1984

SC 1271

Post-decisional/pre- decisional

hearing.

Maneka Gandhi v. Union of India, AIR 1978

SC 597

7

Judges

Mere opportunity to make

submissions on the objections is not

enough.

Mardia Chemical’s case (2004) 4 SCC

311

Doctrine of audi alteram partem.

Surath Chandra

Chakravarty V. The State

of West Bengal

AIR 1971 SC

752

Charge should not be vague

Olga Tellis v. Municipal Corporation of

Bombay, AIR 1986 SC 180 (Para 47)

There is no question of estoppel or

res judicata where fundamental

rights are involved.

S.314 which permitted removal of

pavements without notice was read

into as requiring notice.

Union of India v. Tulsiram

Patel

AIR 1985 SC

1416 (Para

101)

5

Judges

Even where article 311(2) has

expressly excluded natural justice,

such exclusion is permissible only if

compliance of natural justice is not

practical

Dwarkaprasad Agarwal v.

B.D. Agarwal

(2003) 6 SCC

230

Right for a fair trial by impartial and

independent Tribunal is a

fundamental right.

Bidhan Nagar Salt Welfare

Association v. Central

Valuation Board

(2007) 6 SCC

668

Speaking order a must, if not it is a

nullity.

If a statute does not provide an

opportunity of hearing, it is

unconstitutional.

Delhi Transport

Corporation v.

DTC Mazdoor Union

AIR 1991 SC

101

Regulation which permitted

termination without enquiry

unconstitutional.

Central Onland Water

Corporation v. Brojnath

AIR 1986 SC

1571

Do

15

16

Judgments contrary to the settled

proposition (of smaller Benches)

Kishanchand Arora v. Commissioner of

Police, Calcutta, AIR 1961 SC 705

If the function is administrative in

nature, there is no need to observe

principles of natural justice. (Since

then overruled Maneka Gandhi, etc.)

Union of India v. Jesus Sales Corporation,

AIR 1996 SC 1509

2

Judges

(This judgment runs contrary to

Kraipak and Maneka Gandhi cases,

where right to hearing was held to be

mandatory).

Subhash Chandra, AIR 1970 SC 1269

Hiranath Misra’s case, AIR 1973 SC 1260

Commissioner of Customs v. Virgo Steels,

AIR 2002 SC 1745

Ajit Kumar v. IOC, (2005) 7 SCC 746

17

IX. CONFESSIONAL STATEMENT/RETRACTED CONFESSIONAL STATEMENT

Party’s name Citation Strength

of

Bench

Ratio laid down

Rameshwar v. State of

Rajasthan

AIR 1952 SC

54

Puran v. State of Punjab AIR 1953 SC

459

Re: Corroboration.

(party’s name) AIR 1957 SC

637

Retracted confession needs to

be corroborated.

K.T.M.S. Mohammad v.

Union of India.

(1992) 3 SCC

178

- do -

Kanhaiyalal v.. Union of

India

(citation) Statement recorded under FERA

cannot be used for any other

purpose.

Even where the plea that the

retracted statement was

obtained involuntarily could not

be established, Court is not

bound to accept it mechanically.

18

X. JUDICIAL POST

Party’s name Citation Strength

of

Bench

Ratio laid down

Shri Kumar Padmaprasad v. Union of India, AIR 1972

SC 1213

3 Judges

Judicial service means a service

in a judicial post, not under the

control of the Executive. A

judicial post under the control of

the Executive is not a judicial

service. (judgment by Shri

Justice Kuldip Singh, popularly

known as Mizoram Law

Secretary’s case).

All India Judges'

Association and Ors. v.

Union of India and Ors.

AIR 1994 SC

2771

= (1993) 4 JT

618

(copy to be obtained)

State of Maharashtra v.

Labour Law Practitioners

Association.

AIR 1998 SC

1233 Same ratio as above.

Chandra Mohan v. State of U.P., AIR 1966

SC 1987

Judicial service and separation

of powers discussed.

19

XI. PRECEDENT/LAW DECLARED UNDER ARTICLE 141/RATIO DECIDENDI.

Party’s name

Citation Strength

of Bench

Ratio laid down

(1) Oriental Insurance Company Limited v.

Smt. Raj Kumari & Ors. AIR 2008 SC

403;

(2) ______________ AIR 1971 All. 521;

(3) AIR 1951 Bom. 57;

(4) AIR 1954 Bom. 386;

(5) AIR 1923 PC 264 (Please cross-

check these citations)

Maganlal Chhaganlal v. Municipal

Corporation of Bombay, AIR 1974 SC

2009, 7 Judge.

Beautiful discussion on what

constitutes ratio decidendi para

43, 44. the Doctrine of stare

decisis has hardly any

application to an isolated and

stray decisions….. very recently

made and not followed by a

series of decisions.

Dalbir Singh v. State of

Punjab.

AIR 1979 SC

1384

3 Judges “It is not everything said by a

Judge when giving the judgment

that constitutes a precedent.

The only thing in a Judge’s

decision binding a party is the

principle upon which the case is

decided and for this reason it is

important to analyze the

decision and isolate from it the

ratio decidendi.

Alpana V. Mehta v.

Maharashtra State Board

of Secondary Education.

AIR 1984 SC

1827

Grant of stay in SLP in

challenge of a judgment does

not impair the ratio of the High

Court judgment.

K.A. Thomas v. Union of

India.

(1993) 25 ATC

789

Commissioner of Income

Tax Vs Sun Engg. Works

(1992) 4 SCC

363

(Para 39)

Precedent, explained

Madhav Rao Scindia v. Union of India,

(1971)1 SCC 85

If the legal issue did not fall to

be considered, the observations

constitute no precedent.

Olga Tellis v. Municipal

Corporation of Bombay

AIR 1986 SC

180

Para 47

There is no question of estoppel

or res judicata where

fundamental rights are involved.

S.314 which permitted removal

of pavements without notice

was read into as requiring

notice.

Shanmuga Vel Nadar v.

State of Tamil Nadu

(2002) 8 SCC

361

SLP dismissed no question of

merger arises. There is also no

question of the SC having

upheld the reasoning of the HC

20

Naseeruddin & Ors. v. Sitaram Agarwal,

(2003) 2 SCC 577

Para 20

Statute to be construed by the

plain words used.

Naresh Shridhar Mirajkar v. State of

Maharashtra, AIR 1967 SC 1

(Para 16)

9 Judges Obiter or discussion does not

constitute a precedent.

Zee Telefilms Ltd. v. Union of India, AIR

2005 SC 2677

(Paras 275 to 280)

Judgments of the Supreme

Court should not be read as a

statute and the observations

made therein are not an

authority for propositions which

did not fall for its consideration.

Qualcast Ltd. v. Haynes 1959 AC 743 A ratio decidendi is a statement

of law applied to the legal

problems raised by the facts as

found upon which a decision is

based.

Municipal Corporation of

Delhi v. Gurnam Kaur

AIR 1989 SC

38

(Paras 11 and

12)

3 Judges Judgments without reference to

the relevant provisions of the

Act are per in curium and are

not binding precedents.

Lancaster Motor

Company, London v.

Bremith Limited

(1941) 1 KB

675

Not every passing expression of

a Judge, however eminent, can

be treated as ex cathedra

statement, having the weight of

validity.

State of U.P. v. Synthetics and Chemicals,

(1991) 4 SCC 139

(Para 36)

2 Judges Decision not express nor

founded on reasons nor

proceeding on consideration of

the issue cannot be a

precedent.

Collector of Central

Excise, Calcutta v. Alnoori

Tobacco Products & Anr.

2004(6) Scale

232

(Para 11)

2004

SCC(6)186

The Court should not place

reliance on decisions without

discussing as to how the factual

situation sits in with the fact

situation of the decision on

which reliance is placed.

Observations of Courts are

neither to be read as Euclid’s

theorems nor as provision of a

statute and that too taken out of

their context. These

observations must be read in

the context in which they appear

to have been stated.

Judgments of courts are not to

be construed as statutes to

interpret words, phrases and

provisions of a statute; it may

become necessary for Judges

to embark on lengthy decision,

but the decision is meant to

21

explain and not to define …

Their words are not to be

treated as statutes.

Mukund Swarup Misra v.

Union of India & Ors.

(2007) 2 SCC

536

(Para 22)

A.R. Antulay v. R.S. Nayak, (1988) 2 SCC

602

Judgments rendered ignoring

statutory provisions and in

violation of natural justice are

per in curium and are not

binding.

State of Punjab v.

Surinder Kumar & Ors.

(1992) 1 SCC

489

A decision is available as a

precedent only if it decides a

question of law.

State of Bihar v. Kalika

Kaur

AIR 2003 SC

2443

(Para 7)

Ram Gopal Chaturvedi v.

State of M.P.

AIR 1970 SC

158

Para 6

Mere obiter has no binding

force.

Hind Rubber Industries v.

Tahyabhai Mohamedbhai

AIR 1996

Bom. 389

(Para 25)

Keshav Mills Ltd. v. CIT, Bombay, AIR

1965 SC 1636 (Paras 23 & 25)

7 Judges

Krishna Kumar & Ors. v. Union of India &

Ors., (1990) 4 SCC 207 (Paras `20 & 33).

Director of Settlement v. M.R. Apparao,

(2002) 4 SCC 638 (Paras 8 to 14)

3 Judges

ADM Jabalpur v. Sivakant Shukla, AIR

1976 SC 1207

Madhav Rao Scindia v. Union of India, AIR

1971 SC 530

Queen v. Leatham, 1901 AC 495

22

XII. SERVICE OF NOTICE UNDER RULE 10(C) OF FERA ADJUDICATION

PROCEEDINGS.

Party’s name Citation Strength

of

Bench

Ratio laid down

K. Narasimhiah v. H.C. Singri Gowda, AIR

1966 SC 330

“Giving” means actual tender of

notice.

A.M. Soni v. Union of India, AIR 1972 Guj.

126

To give a notice means, actual

communication of the notice to

the person concerned.

P.S. Barkatali v. Director of Enforcement,

AIR 1981 Kerala 81

Along with the Show Cause

Notice, instead of merely saying

that inspection of documents can

be had, the list of documents

relied on and copies thereof

must be furnished.

AIR 1982 Orissa 258 Giving a notice is not complete

unless and until the notice

reaches the person concerned or

is actually tendered to him.

Mere despatch of the notice to

the address of the person is not

enough.

Premnath Khanna v. Collector of Central

Excise, 1987 All. L.J. 723

Service of Show Cause Notice

means not by mere despatch

thereof but actual service.

Anil Jain v. Directorate of Enforcement,

1988 Taxman, Vol.41 (Page 48)

Service of Notice is in order to

provide the charged person an

opportunity to defend his case

and it is not a mere formality but

is a substantive obligation.

Deputy Director of Enforcement v. Nina

Maricare, AIR 1990 Madras 22 (Para 11)

Adjudication proceedings have

two stages – one beginning with

the issuance of the Show Cause

Notice and the second when,

after hearing the cause shown,

the Adjudication Officer decides

to conduct an enquiry.

Mulchand v. Union of India, AIR 1990 Raj.

24

“Giving” means serving of the

notice and not its despatch.

Shivkumar v. State of Haryana, (1994) 4

SCC 445

Postal acknowledgment as proof

of service of notice not sufficient,

because it is not difficult to get

postal seal at any point of time.

Collector of Customs v. Trivandrum Rubber

Works, 1999 Excise & Customs Cases, 179

Notice ought to be served on the

person charged de facto.

23

XIII. CAN THE HC/SC BAR A LAWYER FROM PRACTICING

BCI v Kerala case

Supreme Court Bar Association of

India v. Union of India, AIR 1998 SC

1895: (1998) 4 SCC 409

5-Judges

24

XIV. EFFECT OF REPEAL.

Party’s name & Citation Strength

of Bench

Ratio laid down

Darikapati v. Subbiah Choudhari, AIR 1957

SC 540

Right of appeal is a vested right

and is not lost by repeal unless

the repealing Act expressly

provides so. Such appeal is

liable to be proceeded with

under the repealing Act, for

procedural law will always take

retrospective effect.

Kasibai v. Mahadu, AIR 1965 SC 703 -do-

Rajanarayanlal Bansilal v.

Manek Firoze Mistry

AIR 1961 SC

29

5 Judges Article 20(3) applies only to

someone who is formally

accused, unlike in the USA

where such protection extends

even to civil proceedings.

Unless you are an accused, you

cannot be asked to give

evidence and produce

documents.

Effect of repeal also discussed.

Kudratullah v. Municipal

Board, Bareli.

AIR 1974 SC

396

(Paras 18, 19,

20 & 23)

3 Judges Repeal will destroy the

effectiveness of the repealed Act

in futuro and operate destroy

inchoate right dependent on it.

On repeal, a statute is

obliterated except for

transactions past and closed.

Repeal must not affect the

previous operation of law which

has been repealed during the

period it was operative prior to

the date of such repeal.

Vinod Kumar v. Union of

India.

AIR 1991 SC

2156

(Paras 6 & 11)

Procedural law will always take

retrospective effect unless

expressly provided otherwise.

State of Rajasthan v. Mangilal, AIR 1996

SC 2181

(Paras 8, 9 and 12)

Repeal will destroy the

effectiveness of the repealed Act

in futuro and operate destroy

inchoate right dependent on it.

On repeal, a statute is

obliterated except for

transactions past and closed.

Repeal must not affect the

previous operation of law which

has been repealed during the

period it was operative prior to

the date of such repeal.

Shiv Shakti CHS v. Swaraj AIR 2003 SC No person has a vested right in

25

Developers. 2434 the course of procedure. He has

only a right to a proceeding in a

manner prescribed. If by a

statutory change the mode of

procedure is altered, the parties

have to proceed in accordance

with the altered mode without

exception unless there is a

different stipulation.

Gurcharan Singh Baldev

Singh v. Yashwant Singh

& Ors.

(1992) 1 SCC

428

(Para 25)

Substantive rights under the

repealed Act will continue

despite repeal, unless the

repealing Act carries a different

intention. Application for

renewal of a permit preferred

under the repealed Act which

was pending while the Act was

repealed has to be dealt with

under the repealing Act.

Shyam Sunder & Ors v.

Ram Kumar & another

(2001) 8 SCC

24

(Para 28)

Procedural law will remain

unaffected by amendment. … An

Amending Act which affects

procedure is presumed to be

retrospective unless it provides

otherwise. (Paras 26 and 27 are

also relevant).

K.S. Paripoornan v. State

of Kerala

(1994) 5 SCC

593

In relation to pending

proceedings, the approach of the

Courts in England that the same

are unaffected by the changes in

law so far as they relate to

determination of the substantive

rights and in the absence of

clear indication to a contrary

intention in the amending

enactment, the substantive rights

of the parties, an action falls to

be determined by the law as it

existed when the action was

commenced and this is so

whether the law is changed

before the hearing of the case at

the first instance or while an

appeal is pending.

Hirendra Vishnu Thakur v.

State of Maharashtra.

(1994) 4 SCC

602

(para 26)

(a) Every litigant has a vested

right in substantive law; no such

right exists in procedural law.

(b) Law relating to forum and

limitation is procedural in nature

whereas law relating to right of

action and right of appeal is

substantive in law.

(c) A procedural statute

should not, generally speaking,

be applied retrospectively where

the result would be to create new

26

disabilities or obligations.

(d) A statute which affects

substantive rights is presumed to

be prospective in operation

whereas a statute which merely

affects procedure is presumed to

be retrospective in application.

Dagiram Pindilal v.

Trilokchand Jain

AIR 1992 SC

990

(by Dr. A.S.

Anand, CJI)

(Paras 14 &

15)

2 Judges

New India Insurance Co.

v. C. Padma

(2003) 7 SCC

713

By virtue of an amendment to

the Motor Vehicles Act, the

period of limitation for instituting

claims are done away with, but

the benefit of the amended

provision will be extended to

cause of action which arose

even prior to the amendment.

Being a beneficial legislation, a

beneficial construction ought to

be given.

A different intention is deducible.

Section 6(a) of the General

Clauses Act does not apply as

Parliament realized the grave

injustice caused to heirs of

victims of accidents on the

ground of limitation and sought

to remove the handicap and

therefore a different intention is

deducible.

Garikapati Veeraiah v.

Subbayya Choudhary

AIR 1957 SC

540

5 Judges (Ratio to be dictated)

Gajaraj Singh & Ors. v.

State Transport Appellate

Tribunal

(1997) 1 SCC

650

3 Judges Grant of renewal is a mere

privilege and not an accrued or

vested right. It has to be dealt

with under the repealing Act.

Nar Bahadur Bhandari &

another V. State of Sikkim

& Ors

(1998) 5 SCC

39

Gammon India Ltd v. Special Chief

Secretary & Ors., (2006) 3 SCC 354

(by Dalveer Bhandari, J.)

3 Judges Entire case law on the subject is

discussed and re-affirms the

settled position that rights

accrued and liabilities incurred,

even after repeal of the statute,

will continue to be protected

unless a different intention is

expressed in the repealing Act.

There is no discussion as to

27

procedural law to be applied.

Universal Imports Agency

and another v. Chief

Controller of Imports &

Exports & Ors

1961 SCR 305

Northern India Caterers & Anr. v. State of

Punjab & Anr., AIR 1967 SC 1581

Mohd Iqbal M. Shaikh &

ors. v. State of

Maharashtra

(1998) 4 SCC

594

Mohamed Iqbal Madar

Shaikh & Ors v. State of

Maharashtra

(1996) 1 SCC

722

State of Kerala v. N. Sami Iyer, AIR 1966 SC 1415

Lachmandass v. State of

Bombay

AIR 1952 SC

235

(Para 25)

If no person has a vested right in

procedure, it must follow as a

corollary that nobody has a

vested liability in the absence of

any special provision to the

contrary.

Keshavan Madhavan Menon v. State of

Bombay, AIR (38) 1951 SC 128

7 Judges Every statute is prospective in

application as far as the rights

accrued and liabilities incurred.

A pre-constitutional statute, even

when it becomes null and void

with the coming into force of the

Constitution, being in conflict

with Article 13, still the rights and

liabilities incurred under the said

statute will be operative.

George Da Costa v.

Controller of Estate Duty,

Mysore

AIR 1967 SC

849

T.S. Baliah v. T.S.

Rangachari, Income Tax

Officer, Central Circle VI,

Madras

AIR 1969 SC

701

Ravi Paul & Ors. v. Union

of India & Ors.

(1995) 3 SCC

300

Universal Imports Agency,

Victory Traders v. The

Chief Controller of Imports

and Export & Ors

AIR 1961 SC

41

Kolhapur Cane sugar

Works Ltd v. Union of

India & Ors.

(1998) 8 SCC

692

Smt Sefali Roy

Chowdhary & ors V. A.K.

Dutta

(1976) 3 SCC

602

28

P.V. Mohammad Barmay

Sons v. Director of

Enforcement

AIR 1993 SC

1188

This case is one under FERA.

Nothing new is laid down, except

the settled position that vested

rights accrued and liabilities

incurred will continue.

T. Barai v. Henry Ah Hoe

& another

AIR 1983 SC

150

(Para 17)

3 Judges Just as a person accused of

commission of an offence has no

right for trial by a particular Court

or a particular procedure, the

Prosecutor equally has no right

to insist that the accused be

subjected to an enhanced

punishment under the repealed

Act.

This judgment repels the

contention that where rights and

procedure are dealt with together

by the repealing Act, then the

intention of the Legislature is that

all rights are still be determined

by the old procedure.

Amadalavalasa Coop

Agricultural and Ind.

Society Ltd & another v.

Union of India & another

(1976) 2 SCC

934

Sri Vijayalakshmi Rice

Mills New Contractors Co

& others v. State of

Andhra Pradesh

(1976) 3 SCC

37

M.S. Shivananda v.

Karnataka State Road

Transport Corp & Ors

(1980) 1 SCC

149

Velji Lakshmi & Co & Ors.

v. Bennett Coleman and

Co & Ors

(1977) 3 SCC

160

Amarnath Ajit Kumar of

Bhind v. Commissioner of

Sales Tax, Madhya

Pradesh

AIR 1969

Madhya

Pradesh 207

Allied Exports & Imports

Gudur Nellore District V.

State of Andhra Pradesh

AIR 1971

Andhra

Pradesh 218

(Full Bench)

National Agricultural Co-

op. Marketing Federation

of India Ltd & another V.

Union of India & Ors.

AIR 2003 SC

1329

Maria Cristina De Souza

Sodder & Ors. v. Amria

Zurana Pereira Pinto &

Ors.

(1979) 1 SCC

92

Provision as to forum of appeal

is a procedural matter and the

forum under the repealing Act is

the one that is applicable.

29

R. Rajagopal Reddy

(Dead) by LRS. V.

Padmini Chandrasekharan

(Dead) by LRS.

(1995) 2 SCC

630

M/s. Premier Limited v.

Union of India

2006(5) All

M.R. 24

By Daga &

Devadhar, JJ.

Though offence is under FERA,

an appeal would lie to the

appellate authority under FEMA

and not FERA.

T. Berai v. Henry Hoe, AIR

1983 SC 150 (para 17)

3 Judges

30

XV. QUASHING OF FIR/COMPLAINTS UNDER 482/226.

Party’s name Citation Strength

of

Bench

Ratio laid down

Manaklal v. Dr.

Premchand.

AIR 1957 SC

425

Bias

State of West Bangal v.

Sabankumar Guha.

(1982) 1 SCC

561

3 Judges If a FIR does not disclose an

offence, it can be quashed under

Article 226 of the Constitution.

J.K. Bank v. Jagdish

Gupta

(2004) 10 SCC

568

3 Judges Except where there is an error

apparent on the face of the

record, the execution Court

cannot go behind the decree.

J. Mohapatra v. State of

Orissa

AIR 1984 SC

1572

Bias

State of Haryana v.

Bhajanlal

AIR 1992 SC

604

(Para 114)

Raichand Jain v. Surendra

Prasad.

2006 TLS

Judgment

dated 21/2/06

Examination in adjudication

proceedings will justify quashing

criminal complaint on the very

charge. (Asstt. Collector of

Customs v. L.R. Melwani, AIR

1970 SC 962 – Contrary decision

by the Supreme Court)

R.K. Kapur v. State of

Punjab

AIR 1990 SCC

866

Pepsi Foods Ltd & Ors v.

Special Judicial

Magistrate & Ors

1998 SCC 128

from Allahabad

Quashing of Complaint

Jagdeesh Narayan Hedge

v.

S. Bangarappa

In exceptional cases 482 will lie

against an order of SC in revision

Krishnan v. Krishnaveni 1997 AIR SC

987

In exceptional cases 482 will lie

against an order of SC in revision.

31

XVI. WHERE THE STATUTE IS SILENT AS TO THE OBLIGATION TO AFFORD A

HEARING TO THE PARTY AFFECTED,

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