Supreme court: Matters Of Gruesome Crime Don’t Warrant Withdrawal Of Prosecution Merely On The Ground Of Good Public Image Of Accused

 Considering the material on record and the political influence of Accused Chhote Singh and the Trial Court's casual approach towards the accusations against the then sitting Member of Legislative Assembly in allowing withdrawal of his prosecution, this Court is of the opinion that merely because an Accused person is elected to the Legislative Assembly cannot be a testament to their image among the general public. Matters of a gruesome crime akin to the double murder in the present case do not warrant withdrawal of prosecution merely on the ground of good public image of an Accused named in the charge sheet after thorough investigation. Contrary to the Trial Court's view, such withdrawal cannot be said to be allowed in public interest. This reasoning cannot be accepted especially in cases of involvement of influential people. {Para 12}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2914 of 2024

Decided On: 15.07.2024

Shailendra Kumar Srivastava Vs. The State of Uttar Pradesh and Ors.

Hon'ble Judges/Coram:

Vikram Nath and S.C. Sharma, JJ.

Author: Vikram Nath, J.

Citation: 2024 INSC 529,MANU/SC/0625/2024.

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Whether contractual rights can be waived if it is against public interest?

 At this juncture, it is important to understand what exactly is
meant by waiver. In Jagad Bandhu Chatterjee v. Nilima Rani,
(1969) 3 SCC 445, this Court held:
“In India the general principle with regard to waiver
of contractual obligation is to be found in Section 63
of the Indian Contract Act. Under that section it is
open to a promisee to dispense with or remit, wholly
or in part, the performance of the promise made to
him or he can accept instead of it any satisfaction
which he thinks fit. Under the Indian law neither
consideration nor an agreement would be
necessary to constitute waiver. This Court has
already laid down in Waman Shriniwas
Kini v. Ratilal Bhagwandas & Co.[1959 Supp 2 SCR
217, 226] that waiver is the abandonment of a right
which normally everybody is at liberty to waive. “A
waiver is nothing unless it amounts to a release. It
signifies nothing more than an intention not to insist
upon the right”. It is well-known that in the law of
pre-emption the general principle which can be said
to have been uniformly adopted by the Indian courts
is that acquiescence in the sale by any positive act
amounting to relinquishment of a pre-emptive right
has the effect of the forfeiture of such a right. So far
as the law of pre-emption is concerned the principle
of waiver is based mainly on Mohammedan
Jurisprudence. The contention that the waiver of the
appellant's right under Section 26-F of the Bengal
Tenancy Act must be founded on contract or
agreement cannot be acceded to and must be
rejected.” [para 5]

19. In P. Dasa Muni Reddy v. P. Appa Rao, (1974) 2 SCC 725,
this Court held:
“Waiver is an intentional relinquishment of a known
right or advantage, benefit, claim or privilege which
except for such waiver the party would have
enjoyed. Waiver can also be a voluntary surrender
of a right. The doctrine of waiver has been applied
in cases where landlords claimed forfeiture of lease
or tenancy because of breach of some condition in
the contract of tenancy. The doctrine which the
courts of law will recognise is a rule of judicial policy
that a person will not be allowed to take inconsistent
position to gain advantage through the aid of courts.
Waiver sometimes partakes of the nature of an
election. Waiver is consensual in nature. It implies a
meeting of the minds. It is a matter of mutual
intention. The doctrine does not depend on
misrepresentation. Waiver actually requires two
parties, one party waiving and another receiving the
benefit of waiver. There can be waiver so intended
by one party and so understood by the other. The
essential element of waiver is that there must be a
voluntary and intentional relinquishment of a right.
The voluntary choice is the essence of waiver.
There should exist an opportunity for choice
between the relinquishment and an enforcement of
the right in question. It cannot be held that there has
been a waiver of valuable rights where the
circumstances show that what was done was
involuntary. There can be no waiver of a
non-existent right. Similarly, one cannot waive that
which is not one's as a right at the time of waiver.
Some mistake or misapprehension as to some facts
which constitute the underlying assumption without
which parties would not have made the contract
may be sufficient to justify the court in saying that
there was no consent.” [para 13]

20. Regard being had to the aforesaid decisions, it is clear that
when waiver is spoken of in the realm of contract, Section 63 of the
Indian Contract Act governs. But it is important to note that waiver is
an intentional relinquishment of a known right, and that, therefore,
unless there is a clear intention to relinquish a right that is fully known
to a party, a party cannot be said to waive it. But the matter does not
end here. It is also clear that if any element of public interest is
involved and a waiver takes place by one of the parties to an
agreement, such waiver will not be given effect to if it is contrary to
such public interest. This is clear from a reading of the following
authorities.
21. In Lachoo Mal v. Radhey Shyam, (1971) 1 SCC 619, it was
held:-
“The general principle is that everyone has a right to
waive and to agree to waive the advantage of a law or
rule made solely for the benefit and protection of the
individual in his private capacity which may be dispensed
with without infringing any public right or public policy.
Thus the maxim which sanctions the non-observance of
the statutory provision is cuilibet licet renuntiare juri pro
se introducto. (See Maxwell on Interpretation of Statutes,
Eleventh Edn., pp. 375 and 376). If there is any express
prohibition against contracting out of a statute in it then no
question can arise of anyone entering into a contract
which is so prohibited but where there is no such

prohibition it will have to be seen whether an Act is
intended to have a more extensive operation as a matter
of public policy.” [para 6]
22. In Indira Bai v. Nand Kishore, (1990) 4 SCC 668, it was held:-
“The test to determine the nature of interest,
namely, private or public is whether the right which
is renunciated is the right of party alone or of the
public also in the sense that the general welfare of
the society is involved. If the answer is latter then it
may be difficult to put estoppel as a defence. But if it
is right of party alone then it is capable of being
abnegated either in writing or by conduct.” [para 5]
23. In Krishna Bahadur v. Purna Theatre, (2004) 8 SCC 229, it
was held:
“The principle of waiver although is akin to the
principle of estoppel; the difference between the
two, however, is that whereas estoppel is not a
cause of action; it is a rule of evidence; waiver is
contractual and may constitute a cause of action; it
is an agreement between the parties and a party
fully knowing of its rights has agreed not to assert a
right for a consideration.
A right can be waived by the party for whose benefit
certain requirements or conditions had been
provided for by a statute subject to the condition
that no public interest is involved therein. Whenever
waiver is pleaded it is for the party pleading the
same to show that an agreement waiving the right in
consideration of some compromise came into being.
Statutory right, however, may also be waived by his
conduct.” [para 9]

24. It is thus clear that if there is any element of public interest
involved, the court steps in to thwart any waiver which may be
contrary to such public interest.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.5881-5882 OF 2016
ALL INDIA POWER ENGINEER
FEDERATION & ORS. 
V
SASAN POWER LTD. & ORS. ETC.
DATED: December 08, 2016.

Citation:(2017) 1 SCC 487

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When doctrine of legitimate expectation is not applicable?

  Madras City Wine Merchants' Association and another  Vs.  State of
T. N. and another (1994) 5 Supreme Court Cases 509:
“Legitimate expectation may arise­
(a) if there is an express promise given by a public
authority; or 
(b)   because   of   the   existence   of   a   regular   practice
which the claimant can reasonably expect to continue;
(c) Such   an   expectation   must   be   reasonable.
However, if there is a change in policy or in public
interest the position is altered by a rule or legislation,
no question of legitimate expectation would arise.”
                                                    (emphasis supplied)
10] In the light of aforesaid legal position, it is crystal clear that the
petitioners have no legal right whatsoever to insist for consideration of their
applications for regularization on the basis of Government Resolution dated
28­11­1991. Though it is a fact that the applications moved by the petitioners
were pursuant to the said Government Resolution, these applications were
pending when the State Government came up with a fresh policy by issuing
Government Resolution dated 12­7­2011. The mere fact that the petitioners
had applied for regularization in terms of the earlier policy and the said
applications were pending when the new policy came into force cannot be a
ground to hold that the said applications ought to have been considered as

per the earlier policy. The said applications, therefore, have been rightly
decided in the light of Government  resolution dated 12­7­2011 which is
holding the field. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
WRIT   PETITION    NO.   6466     OF     2015
Bhagwan Kisan Wagh

V
 State of Maharashtra,


CORAM: A.S. CHANDURKAR, J.

 DATED: 21­-07-­2016.
Citation: 2017(2) MHLJ 425

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When court can interfere in case of grant of government contract?

 This court is conscious that its conclusions have the effect of
invalidating the award of contract to some of the respondents. There is no
doubt that a court, in its judicial review jurisdiction, exercises a limited role.
That does not include the wisdom of the decision of the Government or
executive agency which awards the contract. This court recollects the
decision of the Supreme Court in Air India Ltd. v. Cochin International
Airport Ltd & Ors. (2000) 2 SCC 617, in this context, that:
"7………………The award of a contract, whether it is by a private party or
by a public body or the State, is essentially a commercial transaction. In
arriving at a commercial decision considerations which are of paramount are
commercial considerations. The state can choose its own method to arrive at
a decision. It can fix its own terms of invitation to tender and that is not open
to judicial scrutiny. It can enter into negotiations before finally deciding to
accept one of the offers made to it. Price need not always be the sole
criterion for awarding a contract. It is free to grant any relaxation, for bona
fide reasons, if the tender conditions permit such a relaxation. It may not
accept the offer even though it happens to be the highest or the lowest. But
the State, its corporations, instrumentalities and agencies are bound to
adhere to the norms, standards and procedures laid down by them and cannot
depart from them arbitrarily. Though that decision is not amenable to
judicial review, the court can examine the decision-making process and
interfere if it is found vitiated by mala fides, unreasonableness and
arbitrariness. The State, its corporations, instrumentalities and agencies have
the public duty to be fair to all concerned. Even when some defect is found
in the decision- making process the court must exercise its discretionary
power under Article 226 with great caution and should exercise it only in
furtherance of public interest and not merely on the making out of a legal
point. The court should always keep the larger public interest in mind in
order to decide whether its intervention is called for or not. Only when it
comes to a conclusion that overwhelming public interest requires
interference, the court should intervene.” 
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : TENDER MATTER

Decided on: 27.09.2013
W.P.(C)4056/2013 & C.M. APPL. 9559/2013
MI2C SECURITY & FACILITIES PRIVATE LIMITED ..... 
versus
GOVERNMENT OF NCT & ORS. ...
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI
MR. JUSTICE S. RAVINDRA BHAT

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Whether person in settled possession can be evicted by municipal corporation in public interest?

As noted hereinabove, the appellants have been
consistently held not to be encroachers or trespassers on the
land in their occupation, they having been let in thereto by the
erstwhile Gram Panchayat, the then owner thereof. The land
has since changed hands and is vested in the State
Government. In our view, both the appellants and the
respondents/defendants have to share the blame of leaving the
compromise decree unexecuted for over a decade whereafter
fresh rounds of confrontations surfaced leading to the present
situation. Be that as it may, though there has been no
determinance of the appellants’ right, title and interest in the
land, except that they are admittedly in continuous possession
since the year 1970 and carrying on their business there,
understandably, over the years, they have settled themselves in
their plots and are earning their livelihood from the income of
the business dealings. Though the build up of facts, since the
compromise decree cannot be discarded, the contemplated
measures of the respondents, to clear the area of the
encroachments in public interest and for its overall
development, would result in the displacement of the
appellants as a compelling necessity. As a corollary, they have
to be essentially rehabilitated or adequately compensated
bearing in mind, the impact of the passage of time on the
relevant perspectives since the date of the compromise decree.

REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 14016 OF 2015

SAYYED RATANBHAI SAYEED Vs  SHIRDI NAGAR PANCHAYAT 

Citation:(2016) 4 SCC631
Author: AMITAVA ROY,J.

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Police officer attending marriage of son of criminal whether liable to be transferred in public interest?

Gujarat High Court, earlier this month refused to interfere with a Transfer order passed against three Police Constables on the ground that they were found attending a marriage reception of the son of a noted bootlegger. Holding that such a transfer order was in Public Interest, Justice J.B.Pardiwala said “If   a   police constable is found to be in company of criminals or   persons   accused   of   having   committed   any offence then his transfer from that place must be held to be in the public interest.”

Public interest demands that an officer or an employee posted at a particular post, must inspire confidence, not only among his fellow employees   and superior   authorities,   but   also among   the   members   of   the   public, the Court said. The Court further held whatever furthers the general interest of the Community, as opposed to the particular interest of the individuals, must be regarded as public purpose. The court said “‘In the context of public service it would mean the interest of public as opposed to the personal, political  or other extraneous interest.”

The Court was considering the Writ petition challenging transfer orders moved by three Police Constables. Counsel for the petitioner had argued that attending the wedding reception has nothing to do with the public interest and the word “Public Interest” used in the orders of transfer is vague. Rejecting those contentions, the court said that police constables attending the reception“necessarily implies the close proximity of the police constables with a noted bootlegger”. The court further said that it is desirable that such police constables should be kept at a distance so that their position is not abused by criminals.

Relying on the decision by Gujarat High Court in Haroon Yusufbhai Kadiwala   V.   Director   General   of   Police   2011 (3) GLH(UJ) 8 the Counsel also said that the transfer of a head constable  from   one   district   to   the   other   amounts   to  deputation   and   can   be made   only   on  administrative grounds in cases of emergency, which is not the case here. Answering that aspect the Court held “The words in Article   154(3)(D) “unless such a transfer is considered  necessary”   should   not   be   construed   as   the  necessity of transfer under Section 28 alone.”  The court added “It   is   the   existence   of   the   circumstances      constituting the public interest which is to be seen by the Court, once the circumstances are shown.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8463 of 2015

HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 06/08/2015

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Principles to be followed by court in case of grant of Injunction against public authorities

What is public policy was considered by the Supreme Court in AIR 1959 SC 781 Ghernlal Parakh v. Mahadeodas Maiya). In paragraph 23 the Supreme Court pointed out as follows at page 795:

"The doctrine of public policy may be summarised thus : Public policy or the policy of the law is an illusive concept it has been described as "untrustworthy guide," "variable quality", "uncertain one" unruly horse", etc. the primary duty of a Court of Law is to enforce a promise which the parties have made and to uphold the sanctity of contracts which form the basis of society, but in certain, cases, the court may relieve them of their duty on a rule founded on what is called the public policy, for want of better words Lord Atkin describes that something done contrary to public policy is a harmful thing, but the doctrine is extended not only to harmful cases but also to harmful tendencies."

There is a judgment passed by the single Judge of this court in MA(F) No. 2 of 1991 (Azad Ali v. Housefed). The date of judgment is 3-2-1993 where this court pointed out that "in granting an injunction against the public authority, the court should be very cautious in considering the balance of convenience, the court should consider the matter regarding injunction in addition to other ingredients public interest is also to be looked into."

We approve this decision by the learned single Judge and we reiterate that when a question of granting injunction arises, not only the three ingredients for the grant of injunction should be considered, but in addition to it, the public interest and/or public policy also is to be considered. Otherwise, if the public interest or public policy is not considered, it will bring chaos to the society and cause distress to the public in general. The court cannot be used as an instrument/tool to cause injury to the society and/ or loss to the community, the requirement of the society, the demand of the society, must be considered, the court must be cautious if its order affects a large chunk of the society. By exercising equitable jurisdiction to give benefit to somebody a larger interest cannot be sacrificed. If injunction is granted, affecting the right of the community in general, it will be a dangerous precedent and court should not easily succumb to such prayer. The learned Judge relied on the passage of Halsbury's Laws of England, but he did not consider the passage in its entirety. The passage is quoted in page 926 and it reads as follows:

"926. Injury must be irreparable. Prima facie the court will not grant an injunction to restrain an actionable wrong for which dernages are an adequate remedy. Where the court interferes by way of injunction to prevent an injury in respect of which there is a legal remedy, it does so upon either of two distinct grounds,-first, that the injury is "irreparable, and second, that it is continuous. By "irreparable injury" is meant injury which is substantiate and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired. The fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages an injunction may be granted if the act in respect of which relief is sought is likely to destroy the subject matter in question; and the mere fact that, in order to avoid litigation, a party has offered to take a sum of money as the price of his rights does not preclude him from asserting that he will suffer irreparable damage from the continuance of the aet complained of. However, if the plaintiff has himself shown by his conduct on a previous occasion, that the injury complained of is one which may in some way be compensated by money, the court may decline to grant an injunction."

Extracting a particular sentence from that passage to use in the cases of the plaintiff should not have been done by the learned Judge. The learned Judge should have considered the entire paragraph and should have decided the matter on the basis of the law enunciated in the paragraph.

Gauhati High Court

State Of Assam And Anr. vs M.S. Associates on 2 May, 1994

Bench: J Sarma, S Neelam

Citation: AIR1994Gau105, (1994)2GLR104

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Construction of court building Vs interest of private party

  The trial court has rightly observed that if there is no 
document   which   show   that   the   suit   property   has   been 
earmarked as separate land for N.A.use, then, the acquisition 
record cannot be brushed aside.  The award is made by the very 
same revenue officer in his capacity as Special Land Acquisition 
Officer.   He  had before him all the maps, measurements and 
records   and   it   is   only   then,   he   considered   the   claim   of   the 
appellants   for   compensation.     In   these   circumstances,   to 
displace and  dislodge the statements made in the award and 
which is of 18th  April 1992 at this prima facie state would be 
improper.  The learned Judge has referred to each of the maps 
and it is erroneous on the part of the appellants to urge that 

they have been brushed aside.  The learned Judge has referred 
to them and equally to the further steps taken culminating in 
the order dated 24th  February 2012.   It is after considering all 
these   materials,   that   he   arrived   at   a   conclusion   that   the 
appellants   –   plaintiffs   have   failed   to   make   out   a   prima   facie 
case.  The Balance of convenience is also not in their favour and 

they will not suffer grave or irreparable loss, harm and injury 
but construction of the court building is a public project and if it 
is stopped at this stage, that would be not in public interest. 
The overwhelming public interest  is paramount in such cases 
whereas   if   the   appellants   ultimately   succeed,   they   can   be 
compensated in terms of money or with appropriate direction.



APPEAL FROM ORDER NO.724 OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

Kisham V
. Chintam

Vs

District Collector, Thane

CORAM
: S. C. DHARMADHIKARI, J. 

26th March 2013.

Pronounced on :
   Citation;2014(3) MHLJ629 Bom

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Person's income tax details can’t be revealed under RTI unless public interest overrides privacy concerns: SC

The income tax details of an employee cannot be revealed under RTI as a rule, but an exception could always be made in public interest, the Supreme Court has said.
The court said in a judgment delivered on October 3, 2012, that the income tax details of a person can't be revealed under RTI unless public interest overrides privacy concerns.

Such information is usually personal with no relationship to a person's public activity or public interest, it said. On the other hand, disclosure of such information may cause unwarranted invasion of an individual's privacy, the court said.

Performance of an employee is primarily a matter between him and the employer and is governed by service rules, which falls under "personal information", the court said.

 We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show cause notices and orders of censure/punishment etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organization is primarily a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer of the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.

14. The details disclosed by a person in his income tax returns are" personal information" which stand exempted from disclosure under clause(j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the Appellate Authority is satisfied that the larger public interest justifies the disclosure of such information.

SUPREME COURT OF INDIA

Girish Ramchandra Deshpande Vs. Central Information Commissioner & Ors.

[Special Leave Petition (Civil) No. 27734 of 2012 (@ CC 14781/2012]

O R D E R

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