APRIL 2022 1. CASE - Jagjeet Singh And Ors. v. Ashish Mishra @ Monu And Anr. 2022 ‘The Supreme Court, on Monday, held that a victim’ as defined under Section 2(wa) of thé Code of the Criminal Procedure. 1973 has a right to be heard at every step post the occurrence of the offence, including the stage of adjudication of b: "A ‘victim' within the meaning of Cr.P.C. cannot be asked to await the commeR@Bment,of trial for asserting his/her right to participate in the proceedings. He/She has a légally vested right to be heard at every step post the occurrence of an offence. Such a 'vietim" has unbridled Participatory rights from the stage of investigation till the culminationof theyproceedings in an appeal or revision", the Court observed. The Court added that “where the vietims themselves have comé forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing”. "If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a bail application, the same may result FW8rave miscarriage of justice. Victims certainly cannot be expected to be sitting on the\fenc®tind watching the proceedings from afar, especially when they may have legitimate grievances. It is the solemn duty of a court to deliver justice before the memory of an injustice eelipses”, the Supreme Court observed. A Bench comprising the Chief Justice of India, N.Y. Ramana and Justices Surya Kant and Hima Kohli canceled the bail granted to.Ashish Mishra by the Allahabad High Court. Remitting the matter back to the High Court forthe fresh consideration of the bail application, it directed Mishra to surrender within a week's time ‘The Bench, while hearing the plea seeking ¢ancellation of bail, identified one of the issues as under Whether a ‘victim' as defined ithder Section 2(wa) of the Code of Criminal Procedure, 1! (hereinafter, "Cr-P.C.") is entitled to be heard at the stage of adjudication of bail application ofan accused?” It noted that traditionally, Criminal law had been regarded as adjudication between the accused and the State, The victim, who is the sufferer of the crime, was viewed as a mute spectator. However, the Bénclrobserved that jurisprudence of rights of the victims to be heard has evolved and their scop®\for participation in criminal proceedings has expanded over time. The pro- victim movement, the Bench notes, was augmented by the adoption of the UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power, 1985 by the United Nations General Assembly Resolution 40/34, The movement was furthered by other intemational bodies like the European Union, that included the vietims within the framework, of the Criminal law procedure. Victims Crime Act, 1984, Victims’ Rights and Restitution Act. 1990.,were enacted by the United States of America to grant legal assistance to the erime- victims. With similar purposes, Australia enacted South Australian Vietims of Crime Act, 2001 and Canada enacted the Canadian Victims Bill of Rights. These pieces of legislation have enlarged scope of participation as well as expanded the ambit of rights of the victims. All copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence.The 154th Report of the Law Commission of India, elucidated on the aspect of compensatory justice to a victim under a compensation scheme. In a report of the Committee on Reforms of Criminal Justice System, 2003 suggestions were made to develop a cohesive criminal justice system framework which would restore the confidence of the people in the system. It, inter alia, recommended - "the rights of the victim or his/her legal representative "to be impleaded as a patty in every criminal proceeding where the charges punishable with seven years’ imprisonment or Ynore". Subsequently, the Code of Criminal Procedure (Amendment) Act, 2008 was broughiinto force, which defines ‘Victim’ under Section 2 (wa) as - *.ttmeans a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her ‘guardian or legal heir"." In Mallikarjun Kodagali (Dead) v. State of Karnataka And Ors. (2019) 2 SCC 752, the Supreme Court had upheld the victim's right to file an appeal against an order of acquittal, It had also encouraged adequate representation to vietims_incFiminal proceedings. It had observed - "8. The rights of victims, and indeed victimology, isan evolving jurisprudence and it is more than appropriate to move forward in a positive dif@etion, rather than stand still or worse, take a step backward. A voice has been given to vietipis.of crime by Parliament and the judiciary and that voice needs to be heard, and if not already heard, it needs to be raised to a higher decibel so that itis clearly heard." The Bench noted that the right of the vietim is independent of that of the State under the Cr.P.C. and the presence of the State in the proceédings cannot substitute the right of the victim to be heard, It noted - "A ‘victim’ within the meaning @Cr.P.C. cannot be asked to await the commencement of trial ‘for asserting his/her right to participate in the proceedings. He/She has a legally vested right to be heard at every st@Ppost\the occurrence of an offence. Such a 'victim' has unbridled participatory rights fromthe stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that ‘victim’ and 'complainant/informant’ are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainanvinformees also a ’victim’, for even a stranger to the act of crime can be an ‘informant, aitdsimilarly, a ‘victim’ need not be the complainant or informant of a felony.” ‘The Bench sétout the considerations that needs to be taken into account - 1, Thé evolving criminal law jurisprudence in India acknowledges the right of vietims to ‘be heard, especially in cases involving heinous crimes’ 2, When the vietims themselves come forward to participate in a criminal proceeding, they ‘must be granted opportunity of a fair and effective hearing. In the present matter, the Bench was perturbed to note that the High Court had not acknowledged the right of the victim to be heard, As submitted by Senior Advocate, Mr All copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence.Dushyant Dave appealing for the petitioner, the victims had been disconnected from the online proceedings and therefore, fair and effective hearing could not be accorded to them. 3. CASE - Noel Harper and others versus Union of India 2022 The Foreign Contributions (Regulation) Act, 2010 (the Act) was enacted to regulate.the.influx of foreign contributions or funds given to individuals, associations or companies, The Act purports to ensure that these contributions do not affeet or influence activities thattare of “national interest’ such as electoral polities or the judiciary. All organisations that receive contributions or funding from abroad are bound by this Act and must register themsélyes under it On September 28th 2020, Parliament enacted the Foreign Contributions (Regulation) Amendment Act, 2020 (the Amendment). Certain provisions were changed and introduced into the Foreign Contributions (Regulation) Act, 2010 (FCRA). These provisions further restricted the manner in which foreign funds could be received and used, ‘The amendment made the following changes to the FCRA: 1 © Transferring foreign contributions to any other ‘person’, including individuals, associations or registered companies is prohibited [Section 7]. 2. © The amount of foreign fimdingthat’ean be used for administrative expenses is reduced to 20% of the funds.received, where it was previously 50% [Section 8(1Xb)]- 3. © The Central Governniént is empowered to direct persons receiving foreign funding to not utilise it Or/receive any further funding after conducting a summary inquiry/{Section 11(2)]. © Those registered’under the FCRA or applying for registration are required to open a bank aégount in the main branch of State Bank of India in New Delhi and may Ohly-reeeive and deposit foreign contributions through this branch [Sections.12 & 17]. All office bearers, directors and key functionaries of the registered organisation fnust provide their Aadhaar numbers for identification purposes [Section 12. ‘The changesttoth3FCRA place steep obstacles for Non-Governmental Organisations (NGOs) to receive foreign funding. It has been argued that these restrictions will greatly hamper the functioninigiof NGOs that receive foreign funds, as well as small NGOs which ean no longer receiye fimnd transfers from relatively larger organisations. ‘The-Amendment was challenged under Articles 14, 19 and 21 by Noel Harper, the Chairman of the Care & Share Charitable Trust, and the Jeevan Jyothi Charitable Trust. The petitioners argue that the blanket requirement to open an account at one specific SBI branch is manifestly arbitrary and serves no rational purpose, violating the right to equality. Further, they argue that the Amendment lacks a legitimate objective and has a disproportionate impact on NGOs. All copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence.In response, the Union Government has argued that the Amendment is meant to prevent malpractice and diversion of funds, while defending the country from interference by foreign powers. 4, CASE - Maniben Maganbhai Bhariya versus District Development Officer Dahod and others In a detailed judgment stressing on the importance of the work done by the Anganwadi workers/helpers at the grassroot level, the bench of Ajay Rastogi and Abhay S,"Oka, J has held that Anganwadi workers/helpers are entitled to gratuity under the Payment 6f Gratuity Act, 1972. Writing separate but concurrent opinions, both the judges agreéd that)the Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as Wellas lactating mothers, apart from rendering pre-school education. And for all this, they até being paid very meagre remuneration and paltry benefits The Court observed that it is high time that the CentralkGoverhiffent and State Governments take serious note of the plight of Anganwadi Workers/Helpers who are expected to render such important services to the society. Justice Oka wrote that the definition of “wages” is Veryiywide. It means all emoluments whieh are eared by an employze on duty. Thus, the ltonofarium paid to Anganwadi Workers/Helpers will also be covered by the definition of wages,..As Anganwadi Workers/Helpers are employed by the State Government for wages in the establishments to which the 1972 Aet applies, the AWWs and AWHs are employees within the meaning of the 1972 Act. He also held that it was impossibleto a Workers/Helpers is a part- -cept the contention that the job assigned to Anganwadi ime job. It is full-time employment. He added, “the Government of Indiii*by-a notification dated 3rd April 1997 has notified educational institutions as establishments under clause (c) of sub-section (3) of Section 1 of the 1972 Act. Inthe Anganwadi centres, the activity of running a preschool for the children in the age group of 3 to 6 years is being conducted. It is purely an educational activity. The job of teaching is done by Anganwadi Workers/Helpers. ‘The State Goverment is running preschools in Anganwadi cettttes i accordance with Section 11 of the RTE Act. For the reasons recorded above, I hayeeno manner of doubt that the Payment of Gratuity Act, 1972 will apply to Anganwadi centres and in turn to Anganwadi Workers/Helpers.” Justive Aj Rastogi observed, €If-we\look towards the problems plaguing the Anganwadi workers/helpers, the first and forémost, they are not holders of civil posts due to which they are deprived of a regular salary and other benefits that are available to employees of the State. Instead of a salary, they get only so called paltry ‘honorarium’ (much lower 24 than the minimum, wages) on the specious ground that they are part-time voluntary workers, working only for about 4 hours a day.” All copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence.He, hence, observed that the time has come when the Central Government/State Governments has to collectively consider as to whether looking to the nature of work and exponential increase in the Anganwadi centers and to ensure quality in the delivery of services and community participation and calling upon Anganwadi workers/helpers to perform multiple tasks ranging from delivery of vital services to the effective convergence of various séctoral services, the existing working conditions of Anganwadi workers/helpers coupled with Jack of job security which albeit results in lack of motivation to serve in disadvantagedjareas with limited sensitivity towards the delivery of services to such underprivileged groups. still being the backbone of the scheme, time has come to find out modalities in providing better service conditions of the voiceless commensurate to the nature of job discharged by/them. 5. CASE - Bharat Sanchar Nigam Limited vs Sandeep Choudhary In aservice matter where upon reshuffling and on insertion of two OBC Candidates into general category select list, two general category candidates already appoinfédjand working sinee long, ‘would have been expelled or removed, thereby unsettling the entire selection process, the bench of MR Shah* and BV Nagarathna, IJ exercised its powers under Article 142 of the Constitution of India to do complete justice to all the candidates inyolved. Factual Background BSNL issued notification in 2008 for filling up the, post of Telecom Technical Assistants (TTAs). The recruitment was to be made by condiieting,a competitive examination of eligible candidates in an objective type paper of 200 marks, However, in the exam which was conducted no person from general category candidate _got more than 40% marks, However, four candidates from OBC category obiained mote thai 33% marks. Despite the poor pass percentage of Candidates in the TTA examination, BSNL relaxed the qualifying marks by 10% for all candidates owing to the acute shortage of manpower. Accordingly, the qualifying matks were refixed at 30% for general category and 23% for reserved category. However, two candidates, who wee found fo be more meritorious than the general category candidates subsequently Were, found eligible to be appointed against the reserved category — OBC. Therefore, the respondent No. 1, who was wait listed No.1 in OBC category. approached the Tribunal for a direstion to prepare a fresh list for all candidates based on relaxed standard and act on the said combined merit list. It was, inter alia, pleaded that there cannot be two cut- off marks for a Singl@ election. It was submitted that there was an unreasonable classification by providing another, set of cut-off marks and the action was discriminatory and violative of Articles 1 4yand-16/of the Constitution of India. It was the’ Case.on behalf of the original applicant that those two candidates belonging to OBC category, Who were having more merit were required to be adjusted against the general category. seats and consequently the seats reserved for OBC eategory were required to be filled iitfrom remaining reserved category candidates on merit. Tribunal’s ruling All copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence.Tribunal directed BSNL to consider the candidature of the respondent No.1, if sufficient vacancies exist for placement of the candidates of OBC and further his candidature shall be considered against the present and future vacancies on OBC category. High Court’s Ruling Rajasthan High Court dismissed the writ petition preferred by BSNL by observing that the BSNL should have given appointment to the two candidates belonging to OBC category, against the vacancies which were not reserved vertically in the event of shuffling'the aid two persons to general category (admittedly both the candidates have secured and/or'have more merit than the general category candidates, who were appointed). The ‘High Court further observed that consequently the respondent no. 1 could have been selected-against the vacancies reserved for the OBC. Supreme Court’s Ruling When the matter reached the Supreme Court, various decisighs were\taken note of wherein it was held that the reserved category candidates securing higher marks than the last of the general category candidates are entitled to get seat/post in unreserved eategories, Further, even while applying horizontal reservation, merit must be given precedeiice and if the candidates, who belong to SCs, STs and OBCs have secured higher,marks or are more meritorious, they must be considered against the seats meant for unreserved'candidates. It is further observed that the candidates belonging to reserved categories caft aswell stake claim to seats in unreserved categories if their merit and position in the merit i8t entitles them to do so. Applying the law laid down by the Suprema CotifPin various decisions to the facts of the case on hand, the Court noted that the two candidates, namely, Alok Kumar Yadav and Dinesh Kumar, belonging to OBC category, Were required to be adjusted against the general category as admittedly they were more meritorious/than the last of the general category candidates appointed and that their appointments could not have been considered against the seats meant for reserved category. Consequently, after considering their appointments in the general category, the seats meant for reserved category were required to be filled in from and amongst the other remaining reserved category candidates on merit such as respondent No.1. “Ifsuch a procedure would have been followed, the original applicant — respondent No.1 would have got appointed on merit in the reserved category seats in the vacancy caused due to the above procedure.” ‘Therefore, the findings of the High Court were upheld, ‘The Court, however, was also alive to the fact that by reshufiling and on insertion of two OBC candidates into. general category select list, two general category candidates already appointed shall. have to be expelled and/or shall have to be removed, who are working since long and it may unsettle the entire selection process. Therefore, to strike a balance and to ensure that the ‘iyo.goneral eategory candidates, who are already appointed will not have to be removed and at the same time, respondent No.1 being a reserved category candidate also gets accommodated, if he is so appointed, in exercise of the powers under Article 142 of the Constitution of India, the Court ordered that on reshuffling and on respondent No.1 being appointed now against the reserved category seats and while the Alok Kumar Yadav and Dinesh Kumar, belonging to reserved category, to be treated in the general category seats, two All copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence.candidates already appointed and belonging to general category shall not be removed. However, respondent No.1 shall get the seniority from the date the general category candidates ‘were appointed, who were having lesser merit than Alok Kumar Yadav and Dinesh Kumar. 6, CASE NAME - Principal Commissioner of Income Tax (Central) — 2». Mahagun Realtors (P) Ltd Section 170 - Companies Act, 1956; Section 394 (1)(a) - Amalgamation - Amalgamation is unlike the winding up of a corporate entity, In the case of amalgamation, the otitershell of the corporate entity is undoubtedly destroyed; it ceases to exist. Yet, in every ther Sense of the term, the corporate venture continues — enfolded within the new or the existing transferee entity, In other words, the business and the adventure lives on but within axnéw corporate residence, i.c., the transferee company. It is, therefore, essential to look beyond the mere concept of destruction of corporate entity which brings to an end or terminates any assessment proceedings - Upon amalgamation, the cause of action or the complainitdoes not per se cease depending of course, upon the structure and objective of enactnient - The quest of legal systems and courts has been to locate if a successor or représentatiye exists in relation to the particular cause or action, upon whom the assets might have. devolved or upon whom the liability in the event it is adjudicated, would fall. 7. CASE Case Title: Ram Chander v, State of Chattisgarh and Others [Writ Petition (Criminal) 49 of 2022] A bench of Justices DY Chandrachud and Anirtiddha Bose held that the Courts cannot usurp the power of the government and grant remissiOwof sentence of convicts, but it can only review the decision taken by the govemment with regard to whether the remission granted under Section 432 of the Criminal Procedure Code (CrPC) was arbitrary. "While the court can review thé’ decision of the government to determine whether it was arbitrary, it cannot usurp the power.of the government and grant remission itself. Where the exercise of power by the exedittiye is found to be arbitrary, the authorities may be directed to consider the case of the convict afresh," the Bench ruled, Moreover, it was held that in an application for remission under Section 432 CrPC, while the the opinion of the presiding'judge of the court by which the person making an application for remission has been convicted, will enable’ the government to make the ‘right decision’, it need not be followed mechanically by the concerned government. “"f the opinion of the presiding judge does not comply with the requirements of Section 432 (2) or if the judge does not consider the relevant factors for grant of remission that have been laid down inchaxman Naskar v. Union of India, the government may request the presiding judge to consider the maitter afresh,” the Bench stated in its decision. The goystnment has absolute discretion to decide whether the application for remission should be allowed or not, the Court said. But the top court added that the power cannot be exercised arbitrarily. All copyright ofthe audio, video, study materials, and cher content is exclusively owned by MANKAVIT LAW ACADEMY, and ‘any copying, downloacing, or dsinbution ofthe same for any purpose whatsoever wil be punishable. itis an offence."The prerogative of the executive is subject to the rule of law and fairness in state action embodied in Article 14 of the Constitution," the bench stated. ‘All copyright of the audio, video, study materials. and cther conten is exclsively owned by MANKAVIT LAW ACADEMY, an ‘any copying, downloacing, or dsirouton ofthe same for any purpose whatsoever wil be punishable. Its an offence.