CBI vs RR Kishore – 2023 INSC 817 – Retrospectivity of Subramanian Swamy vs Director CBI judgment quashinng Section 6A DSPE Act – Once a law is declared to be unconstitutional, being violative of Part-III of the Constitution, then it would be held to be void ab initio, still born, unenforceable and non est – The declaration made by the Constitution Bench in the case of Subramanian Swamy vs. Director,CBI (2014) 8 SCC 682 will have retrospective operation. This means that Section 6A of the Delhi Special Police Establishment Act is held to be not in force from the date of its insertion i.e. 11.09.2003 – Article 20 – Sub-article (1) of Article 20 of the Constitution consists of two parts. The first part prohibits any law that prescribes judicial punishment for violation of law with retrospective effect. Subarticle (1) to Article 20 of the Constitution does not apply to civil liability, as distinguished from punishment for a criminal offence. Further, what is prohibited is conviction or sentence for any offence under an ex post facto law, albeit the trial itself is not prohibited. Trial under a procedure different from the one when at the time of commission of an offence, or by a court different from the time when the offence was committed is not unconstitutional on account of violation of sub-article (1) to Article 20 of the Constitution. It may be different, if the procedure or the trial is challengeable on account of discrimination under Article 14 of the Constitution or violation of any other fundamental right- The right under first part of sub-article (1) to Article 20 of the Constitution is a very valuable right, which must be safeguarded and protected by the courts as it is a constitutional mandate – the second part of sub-article (1) to Article 20, which states that a person can only be subjected to penalties prescribed under the law at the time when the offence for which he is charged was committed. Any additional or higher penalty prescribed by any law after the offence was committed cannot be imposed or inflicted on him. The sub-article does not prohibit substitution of the penalty or sentence which is not higher or greater than the previous one or modification of rigours of criminal law – Article 20(1) of the Constitution only and only confines to conviction and sentence. It does not at all refer to any procedural part which may result into conviction or acquittal and/or sentence.
S G Vombatkere vs Union of India WP(C) 682 of 2021 – Fundamental rights do not exist in silos, the Supreme Court observed while it referred the challenge against constitutional validity of Section 124A IPC (sedition) to a larger bench. The court noted that the Kedar Nath Singh Vs State of Bihar did not : (1) make a distinction between the State which falls within the ambit of Article 19(2) and the Government, which does not (2) consider the validity of the provision against a constitutional challenge on the basis of Article 14. The court also rejected the Union Government’s plea to defer considering whether a reference should be made to a larger bench. It had submittted that the Parliament is in the process of reenacting the provisions of the Penal Code and the Bill has been placed before a Standing Committee. “The validity of the prosecutions which have been launched or would be launched so long as Section 124A continues to remain on the statute would have to be assessed under it. The issue of the validity of the provision for the period that it continues to operate would, therefore, need to be determined.”, the court noted.
Jamboo Bhandari vs MP State Industrial Development Corporation Ltd – 2023 INSC 822 – Section 148 Negotiable Instruments Act – Section 389 CrPC- The view that the deposit of minimum 20% amount is an absolute rule which does not accommodate any exception is erroneous – Normally, the Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded.
Javed Shaukat Ali Qureshi vs State Of Gujarat – 2023 INSC 829 – Can Supreme Court suo moto invoke Article 136 jurisdiction to acquit an accused (who did not prefer appeal) on the ground of parity? Here is one such case: Out of 7 people convicted by the High Court, 5 preferred SLP/appeals before the Apex Court at different points of time. One SLP was dismissed in limine against one accused (in 2018). Appeals by three were heard together and they were acquitted (in 2018) Now, appeal by one accused was allowed and he was also acquitted. Even though two accused did not file appeal, the Court acquitted them too on the ground of parity. It even recalled the order dismissing SLP filed by one accused and acquitted him. On invocation of Article 136 Jurisdiction suo motu, the court said: the jurisdiction under Article 136 of the Constitution of India can be invoked in favour of the party even suo moto when the Court is satisfied that compelling ground for its exercise exists. However, such suo moto power should be used very sparingly with caution and circumspection. The power must be exercised in the rarest of the rare cases. The court also said: “”When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the Court cannot convict one accused and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the Criminal Court should decide like cases alike, and in such cases, the Court cannot make a distinction between the two accused, which will amount to discrimination”.
Brihan Karan Sugar Syndicate Private Limited vs Yashwantrao Mohite Krushna Sahakari Sakhar Karkhana – 2023 INSC 831 – Trademark & Passing Off Action -The volume of sale and the extent of advertisement made of the product in question will be a relevant consideration for deciding whether the appellant had acquired a reputation or goodwill. – The passing off action which is premised on the rights of the prime user generating goodwill, shall remain unaffected by any registration provided in the Act. – If goodwill or reputation in a particular jurisdiction is not established by the plaintiff, no other issue really would need any further examination to determine the extent of the plaintiff’s right in the action of passing off. -For establishing goodwill of the product, it was necessary to prove not only the figures of sale of the product but also the expenditure incurred on promotion and advertisement of the product. -While deciding an application for a temporary injunction in a suit for passingoff action, in a given case, the statements of accounts signed by the Chartered Accountant of the plaintiff indicating the expenses incurred on advertisement and promotion and figures of sales may constitute a material which can be considered for examining whether a prima facie case was made out by the plaintiff. However, at the time of the final hearing of the suit, the figures must be proved in a manner known to law – Copyright Infringement – Acquiescence is a defence available in action for the infringement of copyright- If the acquiescence in infringement amounts to consent, it will be a complete defence. Acquiescence is a course of conduct inconsistent with the claim for exclusive rights and it applies to positive acts and not merely silence or inaction such as is involved in laches. Mere negligence is not sufficient – Advocacy – Fairness is a hallmark of great advocacy.” “Members of the Bar are expected to act as officers of the Court, to conduct themselves in a reasonable and fair manner.” Supreme Court reminds lawyers ! The Court, referred to the National Judicial Data Grid, and found that there is a huge pendency of suits in the Trial Courts in the State of Maharashtra. In this case, due to persistent objections raised by an Advocate, the Trial Court had to record a substantial part of the cross examination in question and answer form which consumed a lot of time of the Court. Taking note of this, the Apex court said: “If the members of the Bar do not cooperate with the Trial Courts, it will be very difficult for our Courts to deal with the huge arrears. …. If the advocates start objecting to every question asked in the cross examination, the trial cannot go on smoothly. The trial gets delayed”